60th  Congress  1  SENATE 

1st  Session  J 

f  Document 
l  No.  433 

THE  SECOND 

HAGUE  PEACE  CONFERENCE 

BY 

DAVID  JAYNE  HILL 
D’ESTOURNELLES  DE  CONSTANT 
JAMES  BROWN  SCOTT 

Members  of  the  Conference 

?  i  -  A 

PRESENTED  BY  MR.  LODGE 

APRIL  14,  1908. — Ordered  to  be  printed 

WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1908 

341 

M  55s 

\ 


EXECUTIVE  COMMITTEE  OF  THE  AMERICAN  BRANCH. 


Nicholas  Murray  Butler. 
Richard  Bartholdt. 
Lyman  Abbott. 

James  Speyer. 


Richard  Watson  Gilder. 
Stephen  Henry  Olin. 
Seth  Low. 

Andrew  D.  White. 


2 


ivrvu\ 


The  Net  Result  at  The  Hague. 

By  David  Jayne  Hill. 

[Reprinted  from  the  Review  of  Reviews,  December,  1907.] 

There  are  two  widely  accepted  theories  with  regard  to  the  pacifica¬ 
tion  of  the  world  would  tend  to  belittle  the  value  of  The  Hague  Con¬ 
ferences.  One  is  that  permanent  peace  between  the  nations  is  intrin¬ 
sically  impossible,  because  their  vital  interests  and  purposes  are  in 
essential  conflict,  and  the  love  of  domination  is  so  strong  in  human 
nature  that  war  is  certain  always  to  recur  in  the  future  as  it  has  in  the 
past.  The  opposing  theory  is  that  universal  peace  is  at  once  attain¬ 
able  by  the  mere  resolution  to  abolish  war,  and  that  governments  have 
only  to  agree  to  maintain  peace  by  referring  all  their  differences  to 
third  parties  for  settlement,  binding  themselves  to  abide  by  their  de¬ 
cisions,  whatever  they  may  be. 

Those  who  hold  the  first  theory  regard  international  conferences 
like  those  that  have  been  held  at  The  Hague  as  nugatory  and  super¬ 
fluous,  for  the  reason  that  such  congresses  can  add  nothing  to  the 
motives  to  refrain  from  war  or  to  the  power  to  prevent  it.  On  the 
other  hand,  those  who  accept  the  second  theory  regard  as  sterile  and 
derisory  all  discussions  and  agreements  that  do  not  go  to  the  root  of 
the  matter  and  by  one  decisive  act  render  war  impossible. 

Between  these  two  ways  of  thinking,  The  Hague  Conferences  have 
been  saluted  with  contempt  on  the  one  hand,  and  satire  on  the  other ; 
and  have  found  their  friends  chiefly  among  those  who  consider  that 
education,  the  perception  of  the  practical  value  of  law,  and  the 
gradual  subjection  of  impulse  to  reason  are  progressive  elements  of 
national  development  under  the  laws  of  social  evolution;  and  who, 
therefore,  simply  ask  that,  as  in  other  spheres  of  political  growth, 
there  may  be  found  in  international  relations  a  reasonable  rate  of 
^progress  toward  the  realization  of  the  great  ideals  of  peace,  coopera¬ 
tion,  and  good  will. 

Leaving  aside  the  merely  theoretical  aspects  of  the  subject,  let  us 
modestly  inquire  what  are  the  results  of  the  Second  Peace  Conference 
at  The  Hague? 

It  is  not  without  significance  that,  for  the  first  time  in  the  history . 
of  the  world,  the  representatives  of  forty-five  independent  powers — 
diplomatists,  jurists,  and  experts  in  military  and  naval  science — have 
been  able  to  meet  together  in  a  friendly  manner  and  to  discuss  with¬ 
out  animosity  some  of  the  most  delicate  international  questions  dur¬ 
ing  more  than  four  months  without  a  rupture  of  personal  or  national 
amity.  When  it  is  considered  that  the  Second  Peace  Conference  at 
The  Hague  has  included  nearly  every  sovereign  state — and  all  of  the 
greatest  importance — that  in  many  instances  the  truth  has  been 

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p  31.1 05 

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THE  SECOND  HAGUE  PEACE  CONFEKENCE. 


spoken  clearly,  earnestly,  and  sometimes  with  vivacity ;  that  some  of 
the  delegates  were  but  recently  arrayed  against  each  other  in  the  heat 
of  battle  on  sea  and  land,  that  others  held  or  represented  opinions 
diametrically  opposed,  that  they  were  all  largely  occupied  with  com 
sidering  what  they  might  or  might  not  do  to  one  another  in  the  event 
of  a  future  struggle  in  which  'their  lives  and  those  of  their  country¬ 
men  would  be  the  pawns,  the  courtesy,  the  reasonableness,  and  the 
agreement  of  these  gentlemen  regarding  certain  great  principles  pre¬ 
sent  a  commentary  on  our  contemporary  civilization  and  an  exposition 
of  its  tendencies  most  gratifying  to  the  moralist  and  the  philanthro¬ 
pist  as  well  as  to  the  jurist  and  the  publicist. 

But  what  has  the  Second  Conference  done?  It  has  demonstrated, 
first  of  all,  not  only  that  a  universal  congress  of  this  character  is  pos¬ 
sible,  but  that  certain  great  principles — or  postulates  of  constructive 
action,  as  we  may  call  them — are  now  beyond  dispute.  Among  these 
are  the  propositions  that  peace  is  the  normal  and  war  the  abnormal 
condition  of  civilized  nations;  that  the  relations  of  sovereign  states 
are  properly  based  on  principles  of  justice,  and  not  upon  force;  that 
really  sovereign  states  should  have  equal  rights  before  the  bar  of  in¬ 
ternational  justice,  independently  of  their  size  or  military  strength; 
that  disputes  between  governments  should  be  settled,  as  far  as  possi¬ 
ble,  by  judicial  methods,  and  not  by  war;  and  that  war,  if  inevitable, 
is  an  evil  whose  disastrous  consequences — especially  as  regard  neu¬ 
trals,  noncombatants,  the  sick  and  the  wounded — should  by  general 
agreement  be  reduced  to  a  minimum. 

What  then  has  the  conference  done  to  give  practical  effect  to  these 
principles  ?  It  has  concluded  thirteen  conventions,  made  two  declara¬ 
tions,  passed  one  resolution,  emitted  five  voeux — which  the  irreverent 
characterize  as  “  pious  wishes  ”■ — and  offered  one  special  recommen¬ 
dation. 

As  the  conventions  have  not  yet  been  ratified,  and  the  action  which 
the  different  governments  may  take  regarding  them  is  unknown,  it 
would  not  be  appropriate  for  a  recent  delegate  to  do  more  than  de¬ 
scribe  them  in  the  most  objective  manner.  It  is  impossible,  therefore, 
at  this  time  and  in  this  article  to  attempt  an  analysis  of  the  motives 
and  policies  of  the  different  governments — interesting  as  this  might 
be — in  fixing  the  limitations  that  have  been  imposed.  It  is  important 
to  note,  however,  that,  whatever  may  be  the  fate  of  these  treaties  as 
respects  ratification  and  subsequent  execution,  they  accurately  register 
the  degree  of  progress  which  an  international  conference,  seriously 
and  conscientiously  aiming  at  the  task  of  pacification,  is  now  ready  to 
accept. 

The  work  of  the  conference  not  only  serves  to  indicate  the  exact  stage 
that  has  been  reached  in  international  development — which  has  a 
considerable  value  for  students  of  the  subject — but  it  renders  apparent 
what  remains  to  be  done  in  order  to  carry  forward  the  movement  of 
which  it  forms  a  part.  That  movement  can  not  be  promoted  by  heap¬ 
ing  reproaches  upon  those  powers  whose  conservatism  has  prevented 
a  further  advance  in  making  definite  engagements.  Each  sovereign 
state  has  its  own  peculiar  problems  of  government,  is  the  rightful 
judge  of  its  own  interests  and  responsibilities,  and  can  not  justly  be 
placed  in  the  pillory  of  public  condemnation  for  the  attitude  which  it 
regards  as  appropriate  to  the  discharge  of  its  obligations  to  its  con¬ 
stituents.  It  is  by  solid  argument  and  by  good  example,  and  not  by 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


5 


censure,  therefore,  that  international  progress  is  to  be  promoted. 
However  dear  our  theories  and  ideas  may  be  to  us  as  individuals  or  as 
nations,  the  first  principle  of  all  harmonious  international  develop¬ 
ment  is  that  no  sovereign  state  is  to  be  coerced,  and  that  each  shall  be 
permitted  to  act  freely  in  the  light  of  its  interests  and  responsibilities 
as  it  sees  them.  Progress,  therefore,  can  be  made  no  faster  than  the 
powers  will  consent  to  make  it;  and  that  consent  will  depend  in  the 
future,  as  it  has  depended  in  the  past,  upon  educational  influence  and 
wise  diplomacy.  What,  then,  is  the  stage  of  progress  actually  attained 
by  the  Second  Peace  Conference? 

The  first  convention  is  a  careful  revision  of  the  treaty  of  1899  for 
the  pacific  settlement  of  international  disputes.  With  regard  to  good 
offices  and  mediation,  a  slight  step  forward  was  taken  by  the  accept¬ 
ance  of  the  American  proposition  that  the  initiative  of  powers  foreign 
to  the  controversy  in  offering  them  is  not  only  “  useful  ”  but  “  desir¬ 
able.”  Greater  precision  has  been  given  to  the  operation  of  commis¬ 
sions  of  inquiry,  whose  great  utility  has  already  been  tested,  but  it  was 
decided  that  the  functions  of  such  commissions  should  be  confined  to 
a  determination  of  facts  and  should  not  extend  to  fixing  responsibility. 
As  regards  arbitration,  while  it  was  reasserted  that  “  in  questions  of  a 
legal  character,  and  especially  in  the  interpretation  or  application  of 
international  conventions,  arbitration  is  recognized  by  the  contracting 
powers  as  the  most  efficacious  and  at  the  same  time  the  most  equitable 
.means  of  settling  differences  that  have  not  been  adjusted  by  diplo¬ 
macy,”  and,  “  in  consequence,  it  would  be  desirable  that,  in  contentions, 
of  this  character,  the  powers  should  resort  to  arbitration,”  it  was  not 
found  possible  to  render  this  resort  an  obligation. 

It  is  necessary  to  state,  however,  that  while  unanimity  upon  this 
proposal  was  not  obtainable — even  for  a  convention  that  omitted  all 
questions  affecting  “  the  vital  interests,  independence,  or  honor  ”  of 
the  contestants  and  included  only  a  meager  list  of  mainly  unimportant 
subjects — 32  powers  voted  in  favor  of  it,  only  9  were  opposed,  and  3 
abstained  from  voting.  As  practical  unanimity  Avas  held  to  be  neces¬ 
sary  for  the  inclusion  of  a  convention  in  the  final  act,  even  this  very 
moderate  attempt  at  obligatory  arbitration  was  unfruitful.  Still,  as 
this  strong  manifestation  of  a  disposition  to  make  a  definite  engage¬ 
ment  could  not  conveniently  be  nullified  without  being  in  some  meas¬ 
ure  recognized,  it  was  resolved,  With  four  abstentions,  that  the  first 
commission  was : 

Unanimous  (1)  in  recognizing  the  principle  of  obligatory  arbitration;  and  (2) 
in  declaring  that  certain  differences,  notably  those  relative  to  the  interpretation 
and  application  of  conA’entional  stipulations,  are  susceptible  of  being  submitted 
to  obligatory  arbitration  without  restriction. 

Regarding  this  resolution  as  a  retreat  from  the  more  advanced  posi¬ 
tion  that  had  been  taken  by  32  powers,  the  head  of  the  American  dele¬ 
gation  clearly  explained  its  attitude  and  refrained  from  voting. 

It  must,  in  justice,  be  added  that  some  of  the  powers  voting  against 
an  obligatory  arbitration  convention  probably  did  so  chiefly  for  the 
purpose  of  avoiding  the  isolation  of  others,  and  that  some  of  the  pow¬ 
ers  most  earnest  in  opposing  the  project  not  only  have  negotiated 
special  treaties  of  obligatory  arbitration,  but  declare  their  intention  of 
negotiating  many  more.  The  state  of  the  question,  then,  is  this :  All 
accept  the  principle  of  obligatory  arbitration  in  certain  classes  of 


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THE  SECOND  HAGUE  PEACE  CONFERENCE. 


cases,  32  powers  are  prepared  to  make  definite  engagements  with  all 
the  rest,  9  prefer  to  make  them  only  with  states  on  whose  responsi¬ 
bility  they  can  rely,  and  3  decline  at  present  to  commit  themselves. 

The  second  convention  relates  to  the  limitation  of  the  employment 
of  force  for  the  collection  of  contractual  debts.  The  form  which 
this  American  proposition  finally  took  is  sufficiently  shown  by  citing 
the  text  of  its  first  article : 

The  contracting  powers  are  agreed  not  to  have  recourse  to  armed 
force  for  the  recovery  of  contractual  debts  claimed  of  the  govern¬ 
ment  of  one  country  by  the  government  of  another  country  as  due 
to  its  nationals. 

Nevertheless,  that  agreement  will  not  be  valid  when  the  debtor 
state  refuses  or  leaves  without  reply  an  offer  of  arbitration,  or,  in 
case  of  acceptance,  renders  impossible  the  conclusion  of  a  protocol, 
or,  after  arbitration,  fails  to  comply  with  the  judgment  rendered. 

It  is  also  provided  that  the  judgment  shall  determine  the  question 
whether  or  not  the  claim  is  well  founded,  the  amount  of  the  debt,  and 
the  time  and  mode  of  payment. 

It  is  hardly  necessary  to  point  out  that  this  convention  is  not  only 
a  very  substantial  gain  in  the  process  of  substituting  justice  for  force 
in  international  dealings,  but  demonstrates  a  spirit  of  conciliation 
and  regard  for  equity  in  the  treatment  of  the  weak  by  the  strong 
that  promises  well  for  the  future.  Its  deep  significance  for  the 
financial  credit  and  the  political  security  of  the  smaller  states,  espe¬ 
cially  on  the  American  continents,  does  not  require  emphasis.  Al¬ 
though  accompanied  with  several  reserves  by  certain  states  which 
hold  that  force  should  in  no  case  be  employed  for  the  collection  of 
debts  based  on  contract,  and  the  abstention  of  six  of  the  smaller 
European  states,  the  proposition  was  adopted  by  the  conference  by 
39  votes  with  5  abstentions. 

The  third,  fourth,  and  fifth  conventions  relate  to  the  opening 
of  hostilities,  the  laws  and  customs  of  war  on  land,  and  the  rights 
and  duties  of  neutral  powers.  The  provisions  are,  in  general,  in 
the  interest  of  humanity,  and  a  wider  recognition  of  the  world’s 
brotherhood.  The  sixth,  seventh,  eighth,  and  ninth  conventions 
relate  to  the  prosecution  of  naval  warfare. 

The  acceptance  of  the  American  proposition  for  the  immunity 
of  private  property  of  belligerents  at  sea — which  received  21  favor¬ 
able  votes  in  the  fourth  commission  against  11,  and  1  abstention — 
would,  no  doubt,  have  radically  affected  the  substance  of  this  group 
of  conventions ;  but,  being  opposed  by  several  of  the  most  important 
naval  powers,  it  was  impossible  to  obtain  for  it  the  necessary  support. 

As  several  of  these  conventions  rest  upon  no  general  principle 
whatever,  but  consist  merely  of  concessions  based  upon  the  maritime 
interests  of  the  powers,  no  attempt  will  be  made  to  explain  them 
here;  for,  in  order  to  comprehend  them,  it  is  necessary  to  refer  to 
the  text  of  articles  as  interpreted  by  the  proces-vevbaux  of  the  con¬ 
ference.  The  sixth  and  seventh  conventions  the  American  delega¬ 
tion  did  not  sign,  partly  because  they  seem  to  be  more  oppressive 
to  the  rights  of  private  property  than  the  present  customary  law 
of  nations,  and  partly  because  they  appear  to  affect  the  rights  of 
self-defense,  which  the  United  States,  as  a  peaceful  nation,  has 
always  maintained  as  correlative  to  customs  of  naval  warfare  which 
have  not  yet  been  abolished.  If,  on  the  other  hand,  the  restrictions 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


7 


upon  submarine  mines  do  not  seem  to  humanitarians  as  radical  as 
they  would  desire  it,  it  must  be  remembered  that  nations  with  long 
and  distant  coast  lines  exposed  to  the  attacks  of  powerful  navies 
can  not  safely  forego  the  right  of  self-protection  even  at  considera¬ 
ble  risk  to  peaceful  commerce.  As  respects  the  bombardment  of 
unfortified  places  by  naval  forces,  the  ninth  convention  prohibits 
such  forms  of  attack,  except  when  they  contain  military  material 
for  which  surrender  has  been  demanded  and  refused. 

The  tenth  convention  applies  the  principles  of  the  revised  Geneva 
convention  to  maritime  warfare.  The  eleventh  exempts  from  cap¬ 
ture  all  postal  correspondence,  official  or  private,  found  at  sea  on  any 
vessel,  neutral  or  belligerent,  as  well  as  the  boats  of  fishermen.  The 
twelfth  establishes  an  international  prize  court,  to  which  appeal  may 
be  made  from  the  decision  of  a  belligerent  prize  court,  under  certain 
conditions,  either  by  a  neutral  power,  a  neutral  private  person,  or 
even  a  private  individual  belonging  to  a  belligerent  power,  if  the 
decision  of  the  national  tribunal  concerns  merchandise  carried  by 
a  neutral  ship.  The  thirteenth  convention  presents  a  code  of  thirty- 
three  articles  concerning  the  rights  and  duties  of  neutral  powers  in 
case  of  maritime  war.  It  has  not  been  signed  by  the  American  pleni¬ 
potentiaries,  for  the  reason  that  it  imposes  upon  neutrals  obligations 
which  it  might  be  practicable  for  them  to  discharge. 

Such  are  the  conventional  engagements  which  the  second  peace 
conference  at  The  Hague  has  proposed  to  the  nations.  In  addition, 
it  has  adopted  by  28  votes  to  8,  with  7  abstentions,  a  declaration  pro¬ 
hibiting  the  throwing  of  projectiles  and  explosives  from  balloons. 
In  a  resolution  stating  that  it  is  “  highly  desirable  ”  to  see  the  gov¬ 
ernments  take  up  the  serious  study  of  the  continued  increase  of  mili¬ 
tary  charges,  it  has  merely  absolved  itself  from  the.  discussion  of  a 
question  which  it  would  be  powerless  to  settle,  and  has  thrown  the 
responsibility  for  examining  it  upon  the  separate  governments.  As 
no  one  of  them  has  made  a  definite  proposition  to  diminish  its  mili¬ 
tary  strength,  it  is  difficult  to  see  how  the  conference  could  take  any 
other  than  this  purely  advisory  attitude. 

There  remains  the  voeux.  These  unfulfilled  aspirations  are  con¬ 
fessions  that  the  conference  has  had  hopes  that  it  could  not  realize. 
Foremost  among  them  is  the  proposed  adoption  of  an  elaborate  proj¬ 
ect  for  the  establishment  of  a  court  of  arbitral  justice,  not  to  super¬ 
sede  but  to  supplement  the  present  tribunal  of  arbitration.  Originally 
suggested  in  the  instructions  of  the  American  delegation,  its  present 
form  is  due  to  the  collaboration  of  the  delegates  of  the  United  States, 
Great  Britain,  and  Germany.  It  is  appended  textually  to  the  final 
act,  and  requires  for  completion  nothing  but  an  agreement  for  the 
choice  of  judges.  The  serious  labor  expended  upon  it  is  not  lost, 
though  its  fruits  may  be  late  in  maturing.  It  only  remains  for  the 
powers  to  take  up  the  project  at  the  proper  time  through  diplomatic 
channels,  and  thus  carry  to  completion  a  great  international  insti¬ 
tution. 

The  second  voeu  invites  the  competent  authorities,  in  case  of  war, 
to  consider  it  a  special  duty  to  assure  and  protect  pacific  relations 
between  the  populations  of  belligerent  states  and  neutral  countries. 
The  third  proposes  that  the  situation  of  strangers  established  in  the 
territory  of  the  powers  with  regard  to  military  burdens  be  made  the 
subject  of  special  conventions.  The  fourth  urges  the  elaboration  of 


8 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


a  code  regarding  the  laws  and  customs  of  naval  warfare  by  the  next 
conference.  Finally,  the  Third  Peace  Conference  at  The  Hague  is 
foreshadowed  in  the  recommendation  that,  after  an  interval  similar 
to  that  which  has  elapsed  between  the  preceding  and  the  recent  meet¬ 
ing,  a  date  be  fixed  for  another  by  common  agreement  between  the 
powers,  that  a  sufficient  notice  be  given  in  advance,  and  that  two  years 
before  it  is  convened  a  special  committee  shall  prepare  its  programme, 
and  be  charged  with  the  proposal  of  its  mode  of  organization  and 
procedure. 

Until  that  time  the  promotion  of  the  peace  and  good  understanding 
of  the  nations  will  probably  be  left  to  the  methods  of  diplomacy.  If 
the  task  remains  difficult  and  delicate,  it  should  certainly  be  less  so 
than  it  was  before  the  Second  Peace  Conference  convened;  but  the 
experience  of  that  assembly  has  made  it  more  clearly  evident  that, 
as  the  work  of  schools  and  churches  does  not  consist  chiefly  in  educa¬ 
tional  and  ecclesiastical  congresses  but  in  the  steady,  careful,  and 
faithful  performance  of  duty  by  the  rank  and  file  of  the  teachers 
and  the  clergy,  so  international  conferences  in  the  interest  of  peace 
and  justice  owe  their  fruits  mainly  to  the  care,  the  fidelity,  and  the 
competency  of  statesmen  and  diplomatists  who  maintain  the  daily 
relations  between  sovereign  states.  That  this  is,  in  truth,  a  serious 
business,  affecting  the  welfare  of  all  mankind,  is  becoming  more 
evident  as  the  interests  of  great  nations  are  more  and  more  closely 
intertwined  by  the  growth  of  individual  and  commercial  intercourse. 
Without  the  previous  preparation  for  the  recent  conference  by  the 
action  of  the  eminent  Secretary  of  State  of  the  United  States,  and  the 
ripe  experience  and  high  prestige  of  the  ambassadors  whom  the 
President  sent  to  The  Hague  to  head  the  American  delegation,  it 
would  have  been  difficult  to  hold  the  place  there  which  that  delega¬ 
tion  has  held.  If  the  results  of  the  conference  do  not  seem  brilliant, 
it  is  not  because  noble  ideals  were  not  held  steadily  aloft,  but  because 
it  is  the  function  of  an  international  conference  simply  to  register  the 
general  average  of  progress  that  .has  been  attained.  However,  this 
may  be  estimated,  it  represents  the  materials  with  which  the  diplo¬ 
macy  of  the  future  has  to  deal. 


The  Results  of  the  Second  Hague  Conference. 

By  Baron  d’Estournelles  de  Constant. 

[Reprinted  from  The  Independent,  November  21,  1907.] 

During  the  first  two  months  of  the  conference  I  was  continually 
saying  ancl  writing  that  it  would  be  a  great  deception,  that  it  would 
consecrate  the  largest  portion  of  its  time  to  the  amelioration  rather 
than  to  the  prevention  of  war.  In  this  way  I  tried  to  recall  to  the 
conference  the  requirements  of  public  opinion;  it  was  my  duty  and 
it  was  in  the  interest  of  our  work.  The  conference  had,  in  fact, 
begun  with  the  discussion  of  things  relatively  secondary,  in  accord¬ 
ance  with  the  instructions  the  delegates  had  received  from  their  gov¬ 
ernments.  But,  later  on,  during  the  last  two  months,  it  awoke,  eman¬ 
cipated  itself,  was  in  every  respect  worthy  of  admiration — this  justice 
I  am  bound  to  render  to  it.  Gradually  its  ambition  was  aroused, 
and  at  length  it  devoted  its  energies  spontaneously  to  the  second  part 
of  its  task — that  is  to  say,  to  the  principal  programme,  which  it  had 
not  anticipated  and  which  it  was  now  obliged  to  improvise  in  its 
conscience.  In  order  to  arrive  at  this  stage  it  was  necessary  that  it 
should  become,  in  some  sort,  a  new  assembly,  a  more  independent 
assembly,  a  true  moral  person,  living  not  only  by  virtue  of  the  orders 
which  each  delegate  received  from  his  distant  government,  but  also 
living  its  own  proper  life ;  it  was  necessary  that  it  should  become  not 
solely  an  assembly  of  official  representatives  from  all  the  states,  but 
the  collective  representation  of  humanity. 

I  can  not  in  a  few  lines  explain  this  important  phenomenon.  I 
have  spoken  elsewhere  of  the  potent  and  benevolent  action  exercised 
by  M.  Leon  Bourgeois.  I  shall  have  something  more  to  say  of  it, 
but  to-day  I  can  only  direct  attention  to  the  fact  that  certain  func¬ 
tionaries,  certain  ambassadors  who  had  attained  the  summit  of  their 
career,  found  at  The  Hague  an  opportunity  of  rising  still  higher  and 
of  bettering  and  improving  one  another  by  the  most  generous  and 
fruitful  of  rivalries.  And  for  this  very  reason,  after  four  months  of 
intense  and  often  excessive  and  ungrateful  labor,  all  the  delegates 
separated  with  a  mixture  of  joy  and  sorrow,  glad  to  be  free  to  see 
again  their  country  and  their  homes,  but  deeply  affected  by  the 
thought  that  they  were  leaving  a  field  of  new  action  in  which  the 
seed  had  been  so  well  sown.  The  seed,  it  is  true,  is  still  under  ground, 
to  the  great  satisfaction  of  the  skeptics,  but  it  will  germinate  even 
quicker  still  than  that  which  was  a  subject  of  such  mockery  in  1899, 
and  which  did  not  at  that  time  appear  to  have  a  better  chance  of  suc¬ 
cessful  growth. 

The  general  deception  of  public  opinion  is  explained  by  two  mo¬ 
tives,  both  to  the  honor  of  the  conference. 


9 


10 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


First,  it  was  not  able  to  discuss  the  limitation  of  armaments.  This 
question  was  not,  in  fact,  on  its  programme.  The  conference  could 
not  study  it,  and  no  international  assembly  will  ever  be  able  to  study 
it  until  it  is  the  object  of  preliminary  and  national  study  in  all  the 
countries  interested.  A  national  study  first,  an  international  discus¬ 
sion  afterwards.  I  have  never  ceased  for  a  moment  to  insist  on  this, 
and  notably  in  my  report  to  the  Interparliamentary  Conference  of 
London  in  1906.  If  the  conference  had  gone  beyond  this  natural 
order  it  would  have  come  to  nothing;  it  therefore  did  well  to  recall 
to  governments  their  duty  and  then  pass  on  to  other  questions. 

I  will  add  that,  whatever  may  be  said  to  the  contrary,  the  discus¬ 
sion  on  this  question  of  limitation  has  not  been  useless,  and,  as  far  as 
I  am  concerned,  my  conscience  is  tranquil  on  this  subject,  for  the 
more  it  is  discussed,  as  long  as  it  is  declared  that  arbitration  must 
first  be  organized,  the  more  must  the  cause  of  international  justice  be 
necessarily  served;  it  is  a  means  of  emphasizing  more  strongly  the 
urgency  of  this  organization.  If  the  conference  had  not  been  obliged 
to  put  aside  the  limitation  of  armaments  it  would  have  been  less  ener¬ 
getic,  perhaps,  in  seeking  a  compensation  in  the  study  of  arbitration. 

Secondly,  the  conference  lasted  four  months,  and  yet  the  results 
it  has  achieved  have  been  hardly  apparent.  That  is  its  greatest  merit. 
An  assembly  representing  the  world  must  surely  be  congratulated  on 
having  preferred  the  ungrateful  preparation  of  durable  solutions  to 
delusive  immediate  solutions.  Who  is  there,  then,  that  can  believe 
this  labor  of  four  months  to  be  lost  labor?  The  conference  has  pre¬ 
ferred  the  satisfaction  of  duty  accomplished  to  the  eulogies  of  the 
press,  always  on  the  lookout  for  sensational  news,  and,  in  the  present 
case,  disappointed.  Its  confidence  in  the  future  was  so  well  assured 
that  it  did  not  fear  to  dictate  to  the  governments  themselves  the  line 
of  conduct  they  should  have  to  follow.  Enlightened  by  the  difficul¬ 
ties  of  its  own  task,  it  has  given  them  its  experience  as  an  example. 
It  declared  by  a  solemn  decision  that  it  limited  its  role  to  an  action 
purely  transitory,  and  that  a  Third  Conference  was  necessary,  and 
that  after  the  Third  Conference  many  others  should  ensue.  Thus, 
of  its  own  volition,  it  transformed  its  exceptional  reunion  into  a 
simple  session — the  normal,  regular,  automatic  session  of  a  parlia¬ 
ment  of  humanit}^.  It  did  not  fear  to  add  to  this  declaration  a  recom¬ 
mendation  not  less  essential — it  demanded  that  the  next  sesion  should 
be  prepared  at  least  two  years  in  advance. 

Is  not  this  a  brilliant  testimony  of  confidence  ?  A  step  forward  on 
the  road  of  universal  progress? 

How  is  it  possible,  moreover,  not  to  admire,  as  a  true  revelation, 
the  fact  that  three  hundred  delegates  from  all  the  states  of  the  world 
have  been  able  to  discuss  during  four  months  the  gravest,  the  most 
delicate  questions,  questions  which  no  one  ventures  to  touch  upon  even 
in  a  national  assembly,  and  which  for  this  reason  were  absolutely 
new?  Yet  they  discussed  them  in  all  their  details,  discussed  them 
thoroughly,  with  all  the  vivacity,  all  the  passion,  which  such  subjects 
entailed,  but,  nevertheless,  without  at  any  time  the  slightest  disorder, 
the  slightest  difficulty  arising  during  the  discussion.  What  a  clinch¬ 
ing  argument  this  is  to  the  objections  of  those  so-called  statesmen 
who  claim  that  the  greatest  interests  of  the  world  are  exactly  those 
which  must  be  most  carefully  excluded  from  public  discussion ! 


THE  SECOND  HAGUE  PEACE  CONEEKENCE. 


11 


But,  outside  the  great  moral  and  preparatory  results  of  the  Second 
Conference  of  The  Hague,  I  could  cite  a  very  large  number  of  im¬ 
mediate  results  that  are  appreciable.  Among  the  fourteen  conventions 
elaborated  and  finally  signed  will  be  found  very  numerous  dispositions 
tending  to  render  war  at  once  rarer  and  more  difficult,  and  at  the  same 
time  less  inhuman.  That  is  something,  and  I  will  return  to  it  some 
other  day. 

The  plan  of  a  court  of  arbitration  was  studied  at  great  length  and 
finally  elaborated.  In  the  course  of  the  discussion  an  entirely  new 
principle,  that  of  the  moral  equality  of  states,  was  brought  forward. 
Now,  it  must  surely  be  admitted  that  this  principle  would  of  itself 
have  merited  the  examination  of  a  peace  conference.  If  it  has  not 
been  entirely  resolved,  it  is,  at  least,  of  great  consequence  that  it  has 
been  freely  and  openly  discussed.  The  governments  will  in  their  turn 
have  to  study  it  and,  as  a  logical  result,  to  name  the  judges  of  the 
court.  The  conference  could  not  and  ought  not  to  take  upon  itself  the 
solution  of  this  problem.  It  has  laid  it  down  in  all  its  terms ;  the  gov¬ 
ernments  will,  in  their  turn,  have  to  take  action. 

As  to  obligatory  arbitration,  is  it  nothing,  then,  to  have  affirmed  its 
principle  as  an  incontestable  progress  discussed  only  in  its  applica¬ 
tion?  And  does  anyone  think  that  this  solemn  affirmation  is  to  re¬ 
main  negligible  in  the  eyes  of  the  world,  and  that  the  different  peoples 
will  not  have  it  recorded,  so  that  they  may  be  able  to  recall  it  to  their 
governments  at  the  proper  moment?  And,  besides,  as  to  the  question 
of  application  itself,  thirty-five  states  out  of  forty-four  have  declared 
themselves  ready  to  favor  a  general  treaty  of  obligatory  arbitration. 
Quite  a  mechanism  of  admirable  simplification  has  been  provided  and 
accepted  which  permits  all  the  states  to  be  inscribed  on  a  central 
tableau,  and  to  replace  by  this  simple  formality  an  entire  inextricable 
multitude  of  treaties,  all  differing  from  one  another.  This  alone  con¬ 
stitutes  an  innovation  in  every  way  worthy  of  the  twentieth  century. 
Who,  then,  will  dare  to  claim  that  this  agreement  of  the  thirty-five 
liberal  states  of  the  world  is  without  importance,  on  the  pretext  that 
a  minority  of  the  conference  refused  to  accept  it,  or,  at  least,  to  affirm 
it  by  a  general  convention  which  that  minority  would  alone  have  re¬ 
frained  from  signing? 

What  does  this  prove?  Simply  this  fact:  The  majority  exists;  it 
reckons  more  than  three- fourths  of  the  states.  The  minority  took 
upon  itself  to  prevent  this  agreement,  but,  in  doing  so,  it  has  em¬ 
phasized  and  strengthened  it;  on  the  other  hand,  it  has  laid  bare  the 
opposition  of  some  states — or,  more  correctly,  of  a  single  state,  Ger¬ 
many — dragging  along  with  it  in  its  resistance  a  great  power,  Austria, 
with  Turkey,  Boumania,  Greece,  Bulgaria,  Belgium,  Luxembourg, 
and  Switzerland. 

Yet,  and  I  wish  to  repeat  it,  the  representative  of  Germany  was 
careful  to  state  that  he  stood  apart  only  with  regard  to  the  applica¬ 
tion,  but  that,  as  to  the  principle,  he  was  a  partisan  of  obligatory 
arbitration. 

Thus  the  world  was  divided  into  two  camps  of  very  unequal  impor¬ 
tance.  On  one  side  was  the  mass  of  the  states  of  the  world,  great  and 
small,  representing  progress;  on  the  other,  Germany,  representing 
the  opposition,  but  an  opposition  already  hesitating  and  pleading  ex¬ 
tenuating  circumstances.  If  we  recall  the  Germany  of  1899  and  if 
we  note  its  progress  since  that  epoch,  we  shall  not  be  very  much  mis- 


VI  THE  SECOND  HAGUE  PEACE  CONFERENCE. 

taken  in  predicting  that,  between  now  and  the  Third  Conference,  its 
progress  will  be  even  still  more  rapid  and  remarkable.  Certainly, 
Germany  has  advanced  very  far  from  her  position  in  1899 ;  she  is  still 
backward  in  relation  to  the  other  powers,  but  she  will  soon  wish  to 
catch  up  with  the  majority.  This  will  be  the  result  of  the  Conference 
of  1907,  and  particularly  the  work  of  the  majority,  which  will  have 
determined  the  general  progress.  But  for  it  we  should  be  absorbed  in 
the  platonic  adoration  of  the  memories  of  1899.  To-day  we  have 
thirty-five  states  out  of  forty-four  demanding  the  convention  of  obli¬ 
gatory  arbitration  which  we  have  drawn  up  and  voted,  and  which  we 
have  only  to  sign.  Even  that  is  something,  is  it  not  ? 

The  Americans,  in  that  fine  and  peaceful  discussion  of  several 
months,  have  been  splendid,  and  the  youngest  of  all  was  certainly  my 
eminent  friend,  Mr.  Choate,  who  defended,  with  all  the  force  of  his 
authority  and  talent,  the  work  of  the  majority  against  the  criticisms 
of  Baron  Marschall.  xHe  lost  his  case,  say  the  ignorant,  since  the 
opposition  triumphed.  Not  so;  he  won  it,  since  he  reduced  the  op¬ 
position  to  its  simplest  expression,  not  to  say  to  a  simple  question 
of  ciphers.  “  We  are  thirty-five,”  he  said,  “  and  you?  I  could  count 
your  numbers  on  a  single  hand.”  These  words  told  and  will  remain. 
Humanity  will  not  let  itself  be  stopped  by  a  minority  of  a  few  votes ; 
or,  rather,  the  minority  will  be  converted. 

General  Porter,  as  a  faithful  soldier,  has  fought  valiantly  also :  “  I 
have  enlisted  for  the  wTar,”  said  he,  “  and  I  will  go  on  even  to  the  end.” 
He  had  the  satisfaction  of  obtaining  an  almost  unanimous  vote  from 
the  conference  and  of  preventing  governments  from  having  recourse 
henceforth  to  force  for  the  recovery  of  debts  from  a  state.  It  is  a 
result  that  reflects  much  honor  on  the  United  States  and  that  must 
give  satisfaction  to  everybody. 

I  should  have  liked  to  say  something  of  the  services  of  Mr.  Scott, 
Mr.  Hill,  Mr.  Buchanan,  Mr.  Butler,  and  also  of  the  able  representa¬ 
tives  of  the  other  republics  of  America — Mexico,  Brazil,  Peru,  Chile, 
Argentina,  etc.,  but  time  does  not  permit  it.  I  must  content  myself 
with  declaring  that  America,  as  I  have  been  constantly  predicting 
for  many  years,  has,  beyond  any  doubt,  saved  the  conference.  But 
for  America  the  conference  was  lost,  cut  in  two,  or,  rather,  would 
never  have  existed. 

Thanks  to  America,  a  very  important  article  was  voted — article 
48,  which  authorizes  governments,  in  case  of  disputes,  to  address  the 
bureau  of  The  Hague  directly  and  demand  or  propose  arbitration. 
This  mechanism  has  not  been  even  noticed  by  the  press,  and  yet  it 
will  be  amply  sufficient  to  put  all  the  resources  of  arbitration  in 
motion.  Previously,  when  two  states  had  a  ground  of  quarrel,  they 
were  obliged  to  agree  together  to  submit  the  question  to  arbitration, 
and  such  an  agreement  between  two  governments  whose  relations 
have  become  envenomed  is  almost  impossible.  To-day  it  is  in  the 
power  of  one  of  them  to  make  its  offer  openly  and  thus  force  the  sec¬ 
ond  state  to  accept  or  decline  that  offer  in  presence  of  public  opinion. 
It  is  a  very  great  progress,  although  it  may  appear  almost  impercep¬ 
tible,  and  henceforth  a  state  that  sincerely  wishes  to  avoid  war  can 
reply  to  its  aggressor:  “  I  appeal  to  the  judges  of  The  Hague!  ” 

Do  you  believe  that  the  aggressor  will  be  able  to  answer,  “  I  care 
nothing  for  justice,”  without  raising  against  him  the  entire  public 
opinion  of  the  world? 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


13 


To  conclude  with  a  brief  summary,  the  Second  Conference  of  The 
Hague  lasted  four  months,  not  because  it  did  not  effect  anything, 
but  because  it  found  an  immense  field  of  labor  before  it.  It  has  been 
a  simple  session  between  the  First  and  Third  Conferences,  and  it  is 
the  very  modesty  of  its  role  that  in  my  eyes  constitutes  the  grandeur 
of  its  work.  It  has  been  only  the  continuation  of  the  First  Confer¬ 
ence  and  the  preparation  for  the  Third.  It  has,  in  fine,  demon¬ 
strated  the  possibility  of  creating  a  universal  parliament  by  its  own 
life  and  by  the  very  length  and  regularity  of  its  action. 

Paris,  France. 


COUNCIL  OF  DIRECTION  FOR  THE  AMERICAN  BRANCH  OF  THE  ASSOCIATION  FOR  INTER¬ 
NATIONAL  CONCILIATION. 


Lyman  Abbott,  New  York. 

Charles  Francis  Adams,  Boston. 

Edwin  A.  Alderman,  Charlottesville, 
Ya. 

Charles  H.  Ames,  Boston,  Mass. 
Richard  Bartholdt,  M.  C.,  St.  Louis, 
Mo. 

Clifton  R.  Breckenridge,  Arkansas. 
William  J.  Bryan,  Lincoln,  Nebr. 

T.  E.  Burton,  M.  C.,  Cleveland,  Ohio. 
Nicholas  Murray  Butler,  New  York. 
Andrew  Carnegie,  New  York. 

Edward  Cary,  New  York. 

Joseph  H.  Choate,  New  York. 

Richard  H.  Dana,  Boston,  Mass. 
Arthur  H.  Dasher,  Macon,  Ga. 

Horace  E.  Deming,  New  York. 

Charles  W.  Eliot,  Cambridge,  Mass. 
John  W.  Foster,  Washington,  D.  C. 
Richard  Watson  Gilder,  New  York. 
John  Arthur  Greene,  New  York. 

James  M.  Greenwood,  Kansas  City,  Mo. 
Franklin  H.  Mead,  Chicago,  Ill. 
William  J.  Holland,  Pittsburg,  Pa. 
Hamilton  Holt,  New  York. 

James  L.  Houghteling,  Chicago,  Ill. 
Morris  K.  Jesup,  New  York. 

David  Starr  Jordan,  Stanford  Uni¬ 
versity,  California. 

Edmond  Kelly,  Paris,  France. 

Adolph  Lewisohn,  New  York. 

Seth  Low,  New  York. 

Clarence  H.  Mackay,  New  York. 


W.  H.  Mahony,  Columbus,  Ohio. 
Brander  Matthews,  New  York. 

W.  W.  Morrow,  San  Francisco,  Cal. 
George  B.  McClellan,  Mayor  of  New 
York. 

Levi  P.  Morton,  New  York. 

Silas  McBee,  New  York. 

Simon  Newcomb,  Washington,  D.  C. 
Stephen  H.  Olin,  New  York. 

A.  V.  V.  Rayomnd,  Schenectady,  N.  Y. 
Ira  Remsen,  Baltimore,  Md. 

James  Ford  Rhodes,  Boston,  Mass. 
Howard  J.  Rogers,  Albany,  N.  Y. 

Elihu  Root,  Washington,  D.  C. 

J.  G.  Schurman,  Ithaca,  N.  Y. 

Isaac  N.  Seligman,  New  York. 

F.  J.  V.  Skiff,  Chicago,  Ill. 

William  M.  Sloane,  New  York. 

Albert  Iv.  Smiley,  Lake  Mohonk,  N.  Y. 
James  Speyer,  New  York. 

Oscar  S.  Straus,  Washington,  D.  C. 
Mrs.  Mary  Wood  Swift,  San  Francisco, 
Cal. 

George  W.  Taylor,  M.  C.,  Demopolis, 
Ala. 

O.  H.  Tittman,  Washington,  D.  C. 

W.  H.  Tolman,  New  York. 

Benjamin  Trueblood,  Boston,  Mass. 
Edward  Tuck,  Paris,  France. 

William  D.  Wheelwright,  Portland, 
Ore. 

Andrew  D.  White,  Ithaca,  N.  Y. 


The  Work  of  the  Second  Hague  Peace 
Conference. 


By  James  Brown  Scott. 

[Reprinted  from  the  American  Journal  of  International  Law  for  January,  1908.] 

The  Second  International  Peace  Conference,  like  its  predecessor 
of  1899,  endeavored  to  humanize  the  hardships  necessarily  incident 
to  war  and  to  substitute  for  a  resort  to  arms  a  pacific  settlement  of 
international  grievances,  which,  if  unsettled,  might  lead  to  war  or 
make  the  maintenance  of  pacific  relations  difficult  and  problematical. 
The  conference  of  1907,  no  more  than  its  immediate  predecessor, 
satisfied  the  leaders  of  humanitarian  thought.  War  was  not  abol¬ 
ished,  nor  was  peace  legislated  into  existence.  Universal  disarma¬ 
ment  was  as  unacceptable  in  1907  as  in  1899,  and  some  few  nations 
were  still  unwilling  to  bind  themselves  to  refer  all  international 
disputes  not  involving  independence,  vital  interests,  or  national  honor 
to  a  court  of  arbitration. 

Deeply  interested  in  the  success  of  these  projects,  the  great  public 
felt  that  their  failure  necessarily  involved  the  failure  of  the  con¬ 
ference,  notwithstanding  that  many  wise  and  humanitarian  measures 
falling  short  of  the  goal  were  incorporated  into  the  law  of' nations. 
But  we  should  not  in  our  disappointment,  and  perhaps  bitterness  of 
soul,  overlook  positive  and  beneficent  progress,  and  if  we  could  not 
take  the  advanced  position  outlined  by  the  friends  of  peace,  we  should 
nevertheless  rejoice  that  many  a  milestone  has  been  passed.  We 
must  not  forget  that  an  international  conference  is  different  from  a 
parliament ;  that  independent  and  sovereign  nations  are  not  bound  by 
majorities,  and  that  positive  results  are  obtained  by  compromising 
upon  desirable  but  perhaps  less  advanced  projects.  The  aim  of  a 
conference  is  to  lay  down  a  law  for  all,  not  for  the  many,  much  less 
for  the  few ;  to  establish  a  law  which  will  be  international  because  it 
is  accepted  and  enforced  by  all  nations. 

DEVELOPMENT  OF  INTERNATIONAL  LAW. 

The  work  of  the  conference  concerned  the  modification  of  exist¬ 
ing  international  law ;  international  differences  of  opinion  and  inter¬ 
pretation  were  adjusted;  doubt  gave  place  to  certainty,  and,  after 
much  consideration  and  reflection,  principles  of  international  law 
were  fortified,  modified  in  part,  or  wholly  discarded.  A  complete 
code  was  not  established — it  is  doubtful  whether  custom  and  usage 
are  ripe  for  codification — but  important  topics  of  international  law 
were  given  the  symmetry  and  precision  of  a  code. 

It  may  be  maintained  that  international  law  is  law  in  the  strict 
sense  of  the  word,  or  it  may  be  contended  that  it  lacks  an  essential 

15 


16 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


element  of  law,  because  there  is  no  international  sheriff;  that  it  is 
international  morality  or  ethics,  or  that  finally  a  law  of  nations  is 
the  occupation  of  the  theorist  and  the  hope  of  the  dreamer.  However 
opinions  may  differ  as  to  the  nature  of  international  law,  there  can 
be  no  doubt  of  the  existence  of  certain  rules  and  regulations  which 
do  by  common  consent  control  the  conduct  of  independent  nations; 
nor  can  there  be  any  reasonable  doubt  that  enlightened  people  of  all 
countries  take  a  deep  and  abiding  interest  in  international  law,  and 
share  the  hope  of  the  dreamer,  not  only  that  greater  precision  may 
be  given  to  its  principles,  but  that  the  principles  themselves  may  be 
developed  and  applied  with  the  certainty  and  precision  of  a  munici¬ 
pal  code. 

From  the  cell  of  the  cloister  international  law  passed  into  the 
study  of  the  philosopher,  the  jurist,  and  the  scholar;  from  the  study 
it  entered  the  cabinets  of  Europe,  and  for  two  centuries  and  more  a 
recognized  system  of  international  law  has  determined  the  foreign 
relations  of  nations;  from  the  cabinet  to  courts  of  justice,  where  the 
rights  of  nations  as  well  as  individuals  have  been  debated  and  en¬ 
forced,  and,  finally,  from  the  court  room  international  law  has  made 
its  way  to  the  people,  who,  in  last  resort,  dominate  court  and  cabinet, 
and  enlist  in  their  service  scholar  as  well  as  priest. 

It  was  a  wise  remark  of  Sir  James  Mackintosh  that  constitutions 
are  not  made;  they  grow;  for  history  demonstrates  that  unnatural 
unions  dissolve ;  that  unnatural  alliances  have  little  permanency ;  that 
constitutions  struck  off  at  the  heat  of  a  moment  in  times  of  excite¬ 
ment  disappear  with  the  causes  to  which  they  owe  their  origin.  Con¬ 
stitutions  are,  in  a  large  and  broad  sense  of  the  word,  codifications. 
They  put  into  written  and  permanent  form  the  usages  and  customs 
of  the  past,  and  they  last  because  the  spirit  underlying  these  usages 
and  customs  is  wrapped  up  with  the  existence  and  destiny  of  the 
people.  The  Constitution  of  the  United  States  has  lasted  because 
it  was  based  upon  the  usages  and  customs  of  England,  as  modified 
by  the  experience  in  the  colonies,  and  the  Constitution  will  last  as 
long  as  it  answers  the  needs  of  its  framers,  and  no  longer.  To  under¬ 
stand,  however,  the  Constitution  English  customs  and  usages  must 
be  studied,  and  to  predict  the  lines  of  development  we  must  interpret 
the  language  of  the  Constitution  in  the  light  of  its  origin,  as  well  as 
in  the  concrete  case  under  investigation.  It  is  the  same  with  law. 
Law  is  not  imposed  as  a  system  upon  the  people.  Isolated  usage 
develops  into  habit;  the  habit  becomes  crystallized  into  custom,  and 
to  custom  there  is  given,  consciously  and  unconsciously,  the  force  of 
law. 

The  common  law  of  England  is  not  due  to  the  wisdom  of  any  one 
person  or  of  any  one  age.  It  grew  to  meet  a  need ;  it  changed  with 
that  need,  and  disappeared  when  it  could  no  longer  subserve  a  useful 
purpose.  It  is  a  growth,  an  organism,  not  a  crystallization. 

When,  however,  the  process  of  development  did  not  keep  abreast 
of  the  age,  or  when  new  and  unsuspected  needs  required  special  treat¬ 
ment,  statutes  made  their  appearance  to  supply  the  lack  or  to  correct 
the  evil.  The  statute  would  be  special  if  a  special  point  were  in¬ 
volved.  The  statute  would  be  general  in  its  terms  if  the  evil  to  be 
corrected  were  general,  or  the  need  of  the  statute  was  of  a  general, 
widespread  nature.  The  more  rapid  the  development  of  the  country, 
the  greater  and  more  diversified  become  the  needs  of  an  enterprising 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


17 


and  progressive  community,  and  consequently  the  more  frequent 
would  be  and  must  be  the  resort  to  statutory  enactments,  in  order  to 
safeguard  the  rights  and  interests  created  as  the  result  of  changed 
conditions.  Hence  it  follows  that  a  system  of  law  in  its  early  stages 
springs  directly  out  of  the  needs  of  the  people.  If  the  needs  be 
simple,  the  law,  of  which  custom  is  the  very  life,  is  simple.  It  is 
said  to  be  unwritten  in  the  sense  that  no  custom  is  at  once  the  law 
and  the  evidence,  although  in  process  of  time  the  customs  are  natu¬ 
rally  reduced  to  writing  by  people  learned  in  customary  law,  and 
it  is  given  precision  by  decrees  of  courts  of  justice.  Complex  situa¬ 
tions  give  rise  to  a  complex  system  of  law,  and  the  natural  develop¬ 
ment  of  custom  not  being  sufficient,  the  legislature  steps  in  by  statute 
to  accelerate  the  development  and  to  give  to  the  system  of  law  the 
precision,  the  solidity,  and  the  refinement  necessary  for  a  compli¬ 
cated  and  progressive  civilization.  In  this  development,  then,  we 
have  the  local  usage,  the  custom,  and  the  statute. 

If  we  turn  from  the  common  law  to  international  law,  we  find 
that  the  course  of  development  of  the  common  law  of  nations  has 
been  singularly  like  that  of  the  common  law  of  England. 

We  first  have  the  usages  of  enlightened  nations.  These  usages 
spread,  gain  weight  and  influence  by  repeated  application.  We  next 
find  that  the  usages  have  taken  on  the  form  of  custom,  and  nations 
from  isolated  or  frequent  usage  regard  the  custom  as  binding  upon 
them.  That  which  is  claimed  as  a  right  on  the  one  side  becomes  a 
duty  on  the  other,  for  right  and  duty  are  correlative.  The  demand 
in  itself  is  a  consent  to  the  rule  of  law.  The  yielding  to  the  demand 
is  an  acknowledgment  of  the  rightfulness  of  the  custom. 

We  thence  have  customary  rules  and  regulations  binding  nations 
in  their  mutual  intercourse,  because  the  nations,  either  by  enforcing 
the  custom  or  yielding  to  the  custom  sought  to  be  enforced,  have 
given  to  the  custom  the  weight  of  law.  But  just  as  the  common  law 
of  England  grew  slowly,  indeed  imperceptibly,  so  have  the  usages 
of  nations  developed  slowly  and  imperceptibly.  When  nations  had 
little  intercourse  with  one  another,  the  need  for  a  system  of  law  regu¬ 
lating  such  relations  was  of  little  moment.  As  nations  have  grown, 
as  they  have  come  into  closer  contact,  as  no  nation  lives  and  can  live 
in  the  modern  world  in  a  state  of  isolation,  it  necessarily  follows 
that  the  usages  and  customs  of  nations  must  be  developed  in  order 
adequately  to  meet  changed  conditions.  The  independence  of  the 
state  is  the  very  postulate  of  international  law;  but  the  solidarity  of 
interest  has  made  itself  felt  to  such  a  degree  that  nations  have  yielded 
and  must  in  the  future  yield  something  of  their  absolute  liberty  and 
independence,  just  as  a  citizen  yields  his  absolute  freedom  for  the 
benefit  of  society,  of  which  he  is  a  part. 

We  see,  then,  from  this  brief  and  imperfect  sketch  of  the  origin 
and  nature  of  the  common  law  of  one  particular  jurisdiction,  an 
analogy  between  the  common  law  of  nations,  namely,  the  usages  and 
customs  of  many  nations.  We  find,  or  at  least  we  can  assume,  that 
when  only  one  nation  existed  there  could  be  no  international  law. 
Two  nations  existing  would  have  comparatively  little  intercourse,  and 
the  rules  and  regulations  governing  their  intercourse  would  there¬ 
fore  be  simple.  As  the  two  gave  place  to  the  many,  and  as  inter¬ 
course  become  very  frequent,  the  need  of  a  more  elaborate  code  would 


S.  Doc.  433,  00-1 - 2 


18 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


become  evident.  Usage  and  custom  would  grow  to  meet  the  need, 
and  in  the  course  of  time,  insensibly  and  imperceptibly,  usage  and 
custom  would  take  the  dimensions  of  a  code.  But  while  that  is  en¬ 
tirely  true  generally,  it  is  true  with  much  greater  force  in  the  present 
and,  indeed,  in  the  immediate  past;  for  the  discovery  of  the  New 
World,  North  and  South  America,  and  the  contest  for  the  possession 
of  this  world ;  the  establishment  of  colonies  with  the  various  colonial 
systems,  and  the  conflicts  of  interest  that  necessarily  arose,  would  re¬ 
quire  a  system  of  law  adequate  to  settle  them ;  and  when  nation  be¬ 
came  more  closely  connected,  more  intimately  and  frequently  in¬ 
volved,  it  followed  that  the  simplicity  of  the  earlier  usages  and  cus¬ 
toms  would  either  give  place  to  a  more  complicated  code  or  would 
themselves  be  developed  in  order  to  meet  the  growing  needs. 

CONGRESSES  AND  TREATIES. 

Now,  how  could  this  be  done?  In  this  way.  As  nations  became 
more  closely  united  or  related,  previous  usage  or  custom  was  found 
to  be  inadequate;  but  the  spirit  pervading  the  usage  or  custom  was 
discovered  and  developed,  precisely  as  the  spirit  in  the  common  law 
was  developed  in  order  to  meet  a  changed  condition  of  affairs.  Just 
as  in  appropriate  cases  the  municipal  legislature  stepped  in  and  cor¬ 
rected  an  abuse  or  covered  a  field  by  statute,  conferences  were  held 
between  rulers,  treaties  were  negotiated  to  regulate  a  specific  con¬ 
crete  controversy,  and  finally  congresses,  usually  not  at  the  beginning 
but  at  the  end  of  the  controversy,  composed  of  many  states,  because 
the  interests  of  many  were  concerned,  were  convened  in  order  that 
that  might  remain  settled  in  peace  which  had  been  established  in 
war.  The  conference  or  congress  is,  it  would  seem,  not  far  removed 
from  an  international  legislature,  whose  acts  are  submitted  ad  refer¬ 
endum  to  the  participating  nations. 

We  therefore  find  that  treaties  mark  the  first  general  step  in  the 
development  of  the  law  of  nations  as  between  nations  in  recent  years, 
for  it  is  only  in  the  modern  world  that  treaties  have  gone  far  to  cor¬ 
rect  inequality  and  to  establish  a  system  of  international  relations. 
The  special  or  individual  treaties  will  be  comparatively  simple  in  the 
prinicples  of  law  announced  or  defined,  although  complicated  in 
other  respects.  When  the  many  were  involved,  a  congress  or  con¬ 
ference  came  naturally  into  being,  with  the  result  that  in  this  con¬ 
ference  the  questions  causing  the  conflict  would  be  considered  and 
regulated,  in  the  hope  to  prevent  a  recurrence  of  the  conflict.  The 
conferences  and  congresses  were  at  the  conclusion  of  a  dispute.  The 
appeal  was  indeed  to  reason,  but  it  was  unfortunately  belated.  Inter¬ 
esting  examples  of  the  post-mortem  appeal  to  reason  are  furnished 
by  the  Treaty  of  Westphalia  (1648),  the  Congress  of  Vienna  (1814- 
15),  the  Congress  of  Paris  (1856),  the  Congress  of  Berlin  (1878). 
The  Treaty  of  Westphalia  was  negotiated  by  representatives  of  the 
states  engaged  in  the  Thirty  Years’  War  and  the  state  of  affairs  estab¬ 
lished  was  hoped  to  be  durable. 

Passing  over  the  conference  and  treaties  concluding  the  wars  of 
Louis  XIV,  of  which  the  various  treaties  of  Utrecht  of  1713-14 
were  the  most  important  and  far-reaching  in  detail  as  well  as  in 
prinicple,  we  come  to  the  Congres  of  Vienna,  which  attempted,  by 
a  rigid  and  thorough  application  of  the  principle  of  legitimacy,  to 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


19 


reconstruct  Europe  upon  permanent  lines  after  the  crash  of  the 
French  Revolution  and  the  downfall  of  Napoleon.  The  great  powers 
agreed  among  themselves  and  legislated  for  the  rest  of  Europe.  The 
work,  therefore,  was  largely  political,  but  as  all  were  concerned  all 
were  present  or  bound  by  the  determinations  of  the  congress.  It 
was  preeminently  a  war  conference,  but  it  established  peace — a  peace 
which  lasted  for  many  years.  At  the  same  time  its  deliberations  took 
the  form  of  a  general  statute  concerning  river  navigation,  the  rank 
of  ambassadors,  and  the  slave  trade.  Criticise  the  Congress  of  Vienna 
as  we  may,  its  work  was  not  only  of  fundamental  importance,  but 
pointed  the  way  to  a  better  and  brighter  day. 

Although  it  can  not  be  denied  that  the  Congress  of  Paris  in  1856 
was  a  war  conference,  its  work  was  not  wholly  taken  up  with  the 
issues  of  war.  The  Declaration  of  Paris,  for  example,  was  much 
more  general  and  touched  interests  which,  while  involved  in  the  con¬ 
flict,  were  of  wider  importance  than  the  immediate  interests  that  led 
to  the  war  or  were  safeguarded  by  the  conclusion  of  peace.  It  is  also 
true  that  the  Congress  of  Berlin,  in  1878,  was  a  war  congress,  but  it 
dealt  particularly  and  largely  with  the  Balkan  Peninsula  and  set  up 
a  state  of  affairs  which,  while  changed  in  part,  is  nevertheless  the 
basis  of  order  in  Eastern  Europe. 

But  alongside  of  these  larger  gatherings  there  were  smaller  meet¬ 
ings  that  have  profoundly  influenced  the  future.  For  example,  an 
enthusiast  in  Switzerland  interested  countries  in  the  treatment  of  sick 
and  wounded  and  produced  the  first  Geneva  Convention  of  1864 — the 
Red  Cross  Convention,  as  we  call  it — to  ameliorate  the  condition  of 
the  sick  and  wounded  upon  the  field  of  battle.  The  convention  did 
not  come  at  the  very  end  of  a  war ;  it  was  assembled  by  reason  of  the 
horrors  of  the  war  of  1859  between  France  and  Italy  against  Austria. 
In  1868  the  additional  articles  of  the  Convention  of  Geneva  were 
drawn  up  in  conference,  and  there  was  no  immediate  war  that  had 
caused  the  conference  to  assemble.  The  purport  of  these  articles  was 
to  apply  to  naval  warfare  the  principles  of  the  Geneva  Convention  of 
1864. 

In  1868  the  Czar  of  Russia,  Alexander  II,  called  a  conference  in 
order  to  consider  whether  or  not  the  means  of  warfare  might  not  be 
humanized;  whether  the  use  of  certain  instruments  in  warfare,  or 
instruments  of  a  certain  kind,  should  be  prohibited;  whether  bullets 
of  a  certain  weight,  of  a  certain  explosive  quality,  should  not  be  pro¬ 
hibited,  and  there  was  drawn  up  the  Declaration  of  St.  Petersburg. 
It  is  true  that  the  declaration  contemplated  but  was  not  preceded  by 
war. 

The  conference  that  met  in  Brussels  in  1874  upon  the  invitation 
of  the  Czar,  and  which  drew  up  a  project  of  an  international  declara¬ 
tion  concerning  the  laws  and  customs  of  war,  was  not  immediately 
preceded  by  a  war;  and  although  the  project  was  not  adopted  by  the 
powers  represented,  it  was  nevertheless  the  basis  of  the  “  convention 
dealing  with  the  laws  and  customs  of  war  ”  framed  by  the  First 
Hague  Peace  Conference.  The  Brussels  Conference  undertook  the 
codification  of  the  laws  of  war — and  in  so  far  it  can  not  be  con¬ 
sidered  a  peace  conference — but  it  furnished  the  precious  precedent 
of  an  international  statute. 

The  various  congresses  and  conferences  referred  to  were  sum¬ 
moned  by  the  rulers  and  nations  of  Europe,  and  both  in  their  calling 


20 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


and  in  their  results  indicated  an  advance  in  public  opinion.  Public 
opinion,  however,  was  not  content  to  intrust  itself  wholly  to  nations 
and  their  rulers,  but  sought  expression  in  individual  and  cooperative 
lines. 

In  1873  the  Institute  of  International  Law  was  established  at 
Brussels,  composed  of  distinguished  jurists  and  authorities  on  inter¬ 
national  law.  Their  purpose  was  not  merely  to  study  the  problems 
of  international  law,  but  to  advance  the  science  by  an  appeal  to 
reason.  They  considered  the  field  of  international  law  from  the 
standpoint  of  theory  and  sought  by  example  and  precept  to  aid  the 
codification  of  a  rational  system  of  international  law.  International 
law  had  thus  a  society  whose  proceedings  should  appear  annually. 
It  already  had  a  journal,  for  in  1869  three  enthusiasts,  Rolin-Jaeque- 
myns,  Asser,  and  Westlake,  established  the  Revue  de  Droit  Interna¬ 
tional  et  de  Legislation  Comparee.  The  institute  met  annually  and 
issued  its  annual.  The  Review  discussed  scientifically  and  at  length 
important  questions  of  international  law,  and,  little  by  little,  the  in¬ 
fluence  of  the  institute  and  the  review  extended  beyond  the  immedi¬ 
ate  country  of  publication  and  beyond  the  language  in  which  the  pro¬ 
ceedings  and  the  articles  were  written.  A  great  movement  looking 
toward  advance  in  international  lines  was  begun,  and  in  reality  the 
call  of  the  Czar  for  the  great  conference  of  1899,  the  First  Hague 
Conference,  was  simply,  paradoxical  as  it  may  seem,  the  substitution 
of  national  or  international  effort  for  the  individual  or  socialized 
effort  of  the  founders  of  the  Institute  of  International  Law. 

FIRST  HAGUE  CONFERENCE. 

In  1898  the  Czar  Nicholas  called  the  First  Peace  Conference, 
designed  chiefly,  it  would  seem,  to  free  nations  from  the  burden  of 
the  constantly  increasing  armament  by  bringing  about  disarmament. 
The  circular  astonished  the  diplomats;  it  was  not  favorably  received 
in  many  quarters.  Thereupon  a  new  circular  was  prepared  enlar¬ 
ging  the  scope,  relegating  disarmament  to  a  less  important  position, 
hut  enlarging  the  scope  of  the  programme,  or  of  the  invitation,  by 
including  the  consideration  of  various  methods  by  which  arbitration 
might  be  advanced  and  the  peaceful  solution  of  international  diffi¬ 
culties  made  the  rule.  This  second  circular  was  much  better  received, 
and  on  the  18tli  day  of  May,  1899,  the  First  Peace  Conference  of  this 
modern  world,  without  a  war  as  its  immediate  cause,  met  at  the 
House  in  the  Woods  at  The  Hague  for  the  purely  academic  consider¬ 
ation  of  very  great  and  important  international  questions. 

As  an  understanding  of  the  work  of  the  First  Conference  is  neces¬ 
sary  to  an  appreciation  of  the  recent  Second  Conference,  the  results 
of  the  deliberations  of  the  First  Conference  are  briefly  set  forth. 

The  work,  then,  of  this  conference  took  shape  in  three  great  con¬ 
ventions.  The  first  was  the  convention  for  the  peaceful  settlement  of 
international  conflicts,  which  convention  established,  first,  the  right 
of  nations  to  offer  their  good  offices  and  mediation  without  having 
the  offer  or  mediation  considered  as  an  unfriendly  act  by  either  or 
any  of  the  contending  parties;  second,  a  commission  of  inquiry  to 
ascertain  the  facts  of  an  international  difficulty  of  great  and  serious 
importance,  so  that  the  facts  involved  might  be  found  impartially  by 
a  commission  composed  of  neutrals  as  well  as  nationals.  We  all  re- 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


21 


call  the  Dogger  Bank  incident  in  Admiral  Rojesvensky’s  remarkable 
tour  of  the  world.  Japanese  vessels  were  supposed  to  be  lying  in 
wait  in  the  North  Sea.  The  Russian  squadron  opened  fire.  It  is  not 
related  that  any  Japanese  vessels  were  sunk,  but  certain  English  fish¬ 
ing  smacks  were  injured  and  lives  were  lost.  It  is  difficult  to  appre¬ 
ciate  the  state  of  mind  of  the  Russian  admiral,  because  one  would  not 
expect  to  find  Japanese  cruisers  in  the  North  Sea.  or  if  one  did  find 
such  cruisers,  the  fact  of  their  presence  would  be  well  known.  How¬ 
ever,  the  Russian  authorities  maintained  that  they  felt  the  presence 
of  the  enemy,  whether  through  a  mistake  of  signaling  or  not ;  fire 
was  opened  and  lives  were  lost.  Were  it  not  well  established,  this 
would  be  unbelievable;  but  it  happened.  And  the  next  step  was  not 
an  unbelievable  one — the  next  step  was  war.  Wars  have  arisen  for 
less  cause  than  that.  The  national  honor  of  both  countries  was  in¬ 
volved.  Great  Britain  could  not  allow  its  subjects  to  be  shot  with 
impunity;  Russia  could  not  well  consent  to  discipline  its  naval  au¬ 
thorities  without  an  investigation.  Now,  an  investigation  to  be 
valuable  must  be  impartial,  must  be  conducted  more  or  less  by  neu¬ 
trals,  and  for  the  first  time  the  provisions  of  the  convention  for  the 
peaceful  solution  of  international  conflicts  in  the  matter  of  commis¬ 
sions  of  inquiry  were  used.  A  report  was  made  by  this  board  finding 
the  attack  unjustified,  and  Russia  settled  the  damages.  Rulers  of 
nations  and  their  responsible  governments  often  seek  to  avoid  war, 
but  are  frequently  unable  to  do  so.  Therefore  this  machinery  was 
a  godsend  by  which  a  bitter  dispute  between  two  countries  concerning 
a  matter  of  fact  might  be  referred  to  an  impartial  board  for  examina¬ 
tion  and  report.  Without  expressing  any  opinion,  let  me  call  your 
attention  to  the  causes,  at  least  to  an  incident  if  it  were  not  a  cause, 
which  preceded  the  Spanish- American  war — the  blowing  up  of  the 
Maine  in  Habana  Harbor.  Was  it  blown  up  from  within  or  without? 
An  international  board  never  considered  the  question.  An  American 
board  did  consider  the  question.  The  public  passions  were  inflamed, 
and  we  rushed  headlong  into  war.  If  this  international  commission 
had  existed  at  that  time,  the  President  of  the  United  States  would 
have  been  in  an  intrenched  position,  for  he  could  have  insisted  that 
this  matter,  being  a  question  of  fact,  be  submitted  to  a  commission 
of  inquiry  ready  for  constitution  under  rules  of  procedure  accepted 
by  civilized  nations.  I  can  not  say  that  the  Spanish- American  war 
would  not  have  taken  place.  I  am  not  a  prophet  either  as  to  future 
events  or  as  to  events  of  the  past,  but  I  do  maintain  that  those  clauses 
would  have  made  the  outbreak  of  war  much  more  difficult,  and  that 
therefore  the  establishment  of  a  commission  of  inquiry  is  a  great  ad¬ 
vance  for  the  cause  of  peace. 

Third,  the  convention  for  the  pacific  solutions  of  international  con¬ 
flicts  provided  a  court  of  arbitration.  Perhaps  I  would  better  say, 
provided  for  a  court  of  international  arbitration,  because  that  court 
was  to  be  created  when  the  international  controversy  arose.  Each 
nation  was  to  select  and  appoint  and  notify  to  a  board  created  at 
The  Hague  not  more  than  four  persons  of  good  moral  character  and 
competent  in  international  law.  In  case  of  a  conflict  each  party  was 
to  select  two  from  this  list  of  judges.  The  judges  were  to  elect  their 
umpire,  their  presiding  officer,  or  the  nations  were  to  provide  other¬ 
wise  for  the  selection  of  the  umpire.  In  order  that  the  tribunal  thus 
constituted  might  be  of  service  and  in  order  that  litigants  might 


22  THE  SECOND  HAGUE  PEACE  CONFERENCE. 

know  the  exact  procedure  to  be  followed  before  it,  an  elaborate  sys¬ 
tem  of  procedure  was  drawn  up  and  approved.  Since  the  meeting 
of  the  First  Hague  Conference  four  great  and  important  cases  have 
been,  submitted  to  The  Hague  Tribunal,  have  been  adjudicated,  and 
the  judgments  cheerfully  and  promptly  accepted  by  the  litigating 
nations.  Nations  appeared  before  the  bar  as  suitors  and  resorted  to 
law  instead  of  force.  The  court  has  not,  however,  been  so  successful 
as  its  framers  hoped,  largely  because  it  is  not  a  court  permanently 
in  session  composed  of  judges  or  jurists  acting  under  a  sense  of 
judicial  responsibility.  The  fear  of  partiality  in  a  court  constituted 
by  the  suitors  for  a  particular  purpose,  with  judges  chosen  and  paid 
by  the  litigants,  would  seem  to  account  for  the  partial  success,  if  not 
failure,  of  the  institution. 

The  second  great  convention  of  the  First  Conference  was  the  con¬ 
vention  for  the  adaptation  of  the  Red  Cross  to  maritime  warfare. 
That,  of  course,  is  a  technical  subject,  but  even  the  layman  can  see 
what  a  great  advance  it  was  to  have  the  humane  principles  of  the 
Geneva  Convention  of  1864  and  the  additional  articles  of  1868 
applied  to  maritime  warfare  as  well  as  land  warfare. 

The  third  great  convention  was  the  codification  of  the  laws  and 
customs  of  land  warfare,  which,  composed  by  experts,  assumed  the 
proportions  of  an  elaborate  code.  While  based  upon  the  laws  and 
customs  of  war  adopted  by  the  Conference  of  Brussels  (August  27, 
1874),  the  declaration  of  Brussels  drew  its  life  and  spirit  from  Dr. 
Francis  Lieber’s  Instruction  for  the  Government  of  Armies  in  the 
Field,  known  in  army  circles  as  General  Orders,  No.  100,  of  1863. 
The  United  States  may  therefore  claim  not  a  little  proprietary 
interest  in  this  great  convention  of  1899. 

Such  is,  in  brief,  the  outline  of  the  work  of  the  First  Hague  Con¬ 
ference.  Misunderstood  at  the  time,  subjected  to  ridicule  by  reformer 
as  well  as  reactionary,  the  conference  is  now  looked  upon  at  once  as 
the  starting  point  and  the  center  of  international  progress. 

TWOFOLD  WORK  OF  SECOND  CONFERENCE. 

The  work  of  the  Second  Conference,  for  which  the  year  1907  will 
be  remarkable,  was  twofold.  First,  it  revised  and  enlarged  the  con¬ 
ventions  of  1899  in  the  light  of  experience,  in  the  light  of  practice  as 
well  as  of  theory,  and  put  them  forth  to  the  world  in  a  new  and 
modified  form.  In  the  next  place  the  conference  did  not  limit  itself 
to  these  subjects.  To  the  three  conventions  of  1899,  revised  in  1907, 
were  added  ten  new  conventions.  This  simple  statement  shows  the 
enormous  field  covered  and  the  positive  results  achieved  by  the 
Second  Conference  within  the  comparatively  short  period  of  four 
months.  Tried  by  the  standards  of  results,  the  conference  clearly 
justified  its  existence,  but  it  would  have  been  a  success  had  it  demon¬ 
strated  nothing  more  than  the  possibility  of  the  representatives  of 
forty-four  nations  to  live  in  peace  and  quiet  during  four  months.  If 
it  had  done  nothing  more  than  to  bring  these  representatives  into 
close  contact  to  learn  to  understand  one  another’s  needs  by  under¬ 
standing  one  another,  the  conference  would  have  been  a  success. 

But  Ave  can  not  content  ourselves  with  a  mere  statement  of  results, 
for  the  conference  must  rise  or  fall,  not  by  the  amount  accomplished, 
not  by  the  number  of  conventions  negotiated  and  signed,  but  by  their 


THE  SECOND  HAGUE  PEACE  CONFEKENCE. 


23 


value  and  importance.  As  the  various  conventions,  declarations,  reso¬ 
lutions,  and  voeux  of  the  conference  have  been  incorporated  in  the 
Final  Act  and  arranged  in  what  seemed  to  the  conference  their  order 
of  importance,  it  appears  advisable  to  discuss  the  various  results  of 
the  conference  in  the  order  established  by  the  Final  Act.  Perhaps 
a  word  of  explanation  is  necessary  as  to  the  Final  Act  itself.  It 
states  the  calling  of  the  convention,  enumerates  the  countries  and 
their  delegates  taking  part  in  the  conference.  But  the  Final  Act  is 
not  a  convention ;  it  is  rather  a  solemn  statement  of  what  was  done,  a 
summary  or  resume  of  results  indicated  by  the  names  and  titles  of 
the  conventions,  to  be  followed  by  the  text  in  separate  form. 

The  preamble  of  the  Final  Act  states: 

“  The  Second  International  Conference  of  Peace,  proposed  by  the 
President  of  the  United  States  of  America,  having  been,  upon  the 
invitation  of  His  Majesty  the  Emperor  of  All  the  Russias,  convoked 
by  Her  Majesty  the  Queen  of  the  Netherlands,  met,  on  the  fifteenth 
day  of  June,  nineteen  hundred  and  seven,  at  The  Hague,  in  the  Hall 
of  Knights,  in  order  to  give  a  further  and  new  development  to  the 
humanitarian  principles  which  served  as  a  basis  for  the  first  confer¬ 
ence  of  1809.  The  powers  hereafter  enumerated  took  part  in  the 
conference  and  designated  as  their  delegates  the  following:  Ger¬ 
many  (arranged  according  to  the  French  names  of  the  countries), 
the  United  States  of  America,”  etc.  The  Final  Act  then  continues: 

“  In  a  series  of  reunions  held  from  the  fifteenth  day  of  June  to  the 
eighteenth  day  of  October,  nineteen  hundred  and  seven,  in  which  the 
delegates  have  constantly  been  animated  by  the  desire  to  realize  in 
the  largest  measure  possible  the  generous  views  of  the  august  initia¬ 
tor  of  the  conference  and  the  intentions  of  their  Governments 
*  *  *  ,”  the  conference  adopted  “  to  be  submitted  to  the  signatures 

of  the  plenipotentiaries  the  texts  of  conventions  and  of  the  declara¬ 
tion  hereinafter  enumerated  and  annexed  to  the  present  act.” 

An  examination  of  the  text  of  the  preamble  of  the  Final  Act 
clearly  indicates  that  the  conference  was  called  by  President  Roose¬ 
velt.  It  is  common  knowledge  that  Russia  was  not  in  a  position  to 
call  the  conference  during  two  eventful  years.  Time  was  slipping 
by  and  those  who  believed  in  conferences  were  anxious  that  a  new 
conference  should  meet  in  order  to  take  up  the  work  outlined  but  left 
undone  at  the  First  Conference.  Therefore  President  Roosevelt 
sent  a  circular  to  the  various  powers  outlining  a  programme  and  re¬ 
questing  an  expression  of  opinion  as  to  the  advisability  of  such  a  con¬ 
ference  and  assent  to  participation  in  it.  The  responses  were  favor¬ 
able  and  it  seemed  not  unlikely  that  the  conference  would  meet  under 
the  auspices  of  President  Roosevelt.  However,  a  representative  of 
Russia  waited  upon  the  President  and  requested  that  the  initiative 
be  transferred  from  the  United  States  to  the  Czar,  inasmuch  as  the 
Czar  had  called  into  being  not  merely  the  First  Conference  but  the 
idea  of  the  conference.  With  that  chivalry  which  is  characteristic 
of  the  President,  he  -immediately  yielded  the  initiative  to  the  Em¬ 
peror  of  Russia,  the  “  august  initiator,”  as  he  is  called,  and  the  con¬ 
ference  was  convoked  by  the  Queen  of  Holland  upon  the  invitation 
of  the  Czar.  The  United  States  wras,  however,  unwilling  that  only 
a  part  of  the  world  should  be  represented.  Appropriate  steps  were 
therefore  taken  for  the  admission  of  Latin  America,  and  assent  was 
obtained  by  diplomatic  correspondence.  Two  of  the  three  conven- 


24 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


tions  of  1899  were  open ;  that  is  to  say,  the  nonsignatory  states  were 
invited  to  sign,  and  upon  signing,  to  assume  the  obligations  and  ben¬ 
efits  under  the  conventions.  The  convention  for  the  peaceful  set¬ 
tlement  of  international  conflicts  was  a  closed  convention  and  the 
assent  of  the  powers  was  necessary  in  order  that  the  Latin- American 
States  might  be  permitted  to  sign.  The  reason  for  this  was  that 
while  the  powers  represented  at  the  First  Conference  were  willing 
to  arbitrate  and  to  enter  into  certain  relations  with  the  states  rep¬ 
resented  at  the  First  Conference,  they  were  unwilling  to  contract 
generally.  As  one  of  the  delegates  said  at  the  second  convention, 
he  was  unwilling  to  open  his  door  to  any  newcomer  who  chose  to 
knock.  No  objection  was  made,  however,  to  the  adhesion  of  the 
Latin- American  States,  and  on  the  14th  day  of  June,  1907,  consent 
to  their  adherence  was  formally  given. 

In  all,  forty -four  states  were  represented  at  the  conference  and 
forty- four  states  answered  the  roll  call.  Two  states  of  Latin  America 
were  not  represented,  Costa  Rica  and  Honduras.  The  former  ap¬ 
proved  of  the  conference  and  adhered  to  the  conventions  of  1899,  but 
was  not  represented.  The  absence  of  Honduras  was  explained  by  the 
recent  revolution, .  which  paralyzed  its  efforts.  The  restoration  of 
peace  led  to  an  application  to  be  admitted  and  the  application  was 
favorably  acted  upon.  Delegates  were  appointed,  but  they  did  not 
arrive  in  time  to  participate  in  the  work  of  the  conference. 

FIRST  CONVENTION. 

Following  then  the  order  of  the  Final  Act,  the  first  is  the  conven¬ 
tion  for  the  pacific  solution  of  international  conflicts,  the  nature  of 
which  has  been  sufficiently  explained. 

It  should  be  said,  however,  that  the  commission  of  inquiry  was 
much  enlarged  in  the  light  of  the  experience — experience  gained  .in 
the  Dogger  Bank  incident,  previously  referred  to.  The  language  of 
the  convention  was  carefully  <  revised,  provisions  were  given  greater 
clearness,  and  a  few  sections  added  on  summary  procedure.  The 
great  framework  of  1899  was  untouched;  for  the  additions  of  1907 
do  not  change  the  nature  of  the  structure,  although  the  architects 
of  1907  would  doubtless  pronounce  the  additions  to  be  undoubted 
improvements. 

SECOND  CONVENTION. 

The  second  is  the  convention  restricting  the  use  of  force  for  the  re¬ 
covery  of  contract  debts.  This  was  introduced  by  the  American 
delegation,  loyally  and  devotedly  seconded  by  Doctor  Drago,  who  has 
battled  for  the  doctrine  to  which  he  has  given  his  name.  Without 
the  support  of  Doctor  Drago,  it  is  doubtful  if  Latin  America — for 
whose  benefit  it  was  introduced — would  have  voted  for  this  very  im¬ 
portant  doctrine.  The  proposition  is  very  short ;  it  consists  of  but 
three  articles,  but  we  must  not  measure  things  by  their  size.  In  full 
it  is  as  follows: 

In  order  to  avoid  between  nations  armed  conflicts  of  a  purely  pecuniary 
origin  arising  from  contractual  debts  claimed  from  the  government  of  one 
country  by  the  government  of  another  country  to  be  due  to  its  nationals,  the 
contracting  powers  agree  not  to  have  recourse  to  armed  force  for  the  collection 
of  such  contractual  debts. 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


25 


However,  this  stipulation  shall  not  be  applicable  when  the  debtor  state  re¬ 
fuses  or  leaves  unanswered  an  offer  to  arbitrate,  or,  in  case  of  acceptance, 
makes  it  impossible  to  formulate  the  terms  of  submission,  or  after  arbitration, 
fails  to  comply  with  the  award  rendered. 

It  is  further  agreed  that  arbitration  here  contemplated  shall  be  in  conformity, 
as  to  procedure,  with  Title  IV,  Chapter  III  of  the  convention  for  the  pacific 
settlement  of  international  disputes  adopted  at  The  Hague,  and  that  it  shall 
determine,  in  so  far  as  there  shall  be  no  agreement  between  the  parties,  the 
justice,  and  the  amount  of  the  debt,  the  time  and  mode  of  payment  thereof. 

.  In  commenting  upon  the  convention.  President  Roosevelt  wisely  and 
truly  said  that  “  such  a  provision  would  have  prevented  much  in¬ 
justice  and  extortion  in  the  past.”  It  is  emphatically  .a  peace  measure, 
for  the  creditor  renounces  force  and  binds  himself  to  submit  his  claim 
to  arbitration.  Pressure  is  thus  brought  upon  the  debtor  to  accept 
arbitration  or  take  the  consequences  of  a  refusal.  It  should  not  be 
overlooked  that  these  three  paragraphs  will  banish  foreign  fleets  from 
American  waters,  and  American  ports  are  not  likely  again  to  be 
blockaded,  as  in  the  past,  for  the  collection  of  contract  debts  due  from 
one  government  to  citizens  of  the  blockading  nation.  The  Monroe 
doctrine  has  made  its  first  and  formal  entry  into  the  public  law  of 
Europe  as  well  as  America. 

THIRD  CONVENTION. 

The  third  convention  relates  to  the  opening  of  hostilities  and  pro¬ 
vides,  in  Article  I,  that  the  contracting  powers  recognize  that  hostili¬ 
ties  between  them  should  not  commence  without  notice,  which  shall  be 
either  in  the  form  of  a  formal  declaration  of  war  or  of  an  ultimatum 
in  the  nature  of  a  declaration  of  conditional  war.  This  is  to  protect 
belligerents  from  surprise  and  bad  faith.  Article  II  is  meant  to 
safeguard  the  rights  of  neutrals.  The  state  of  war  should  be  noti¬ 
fied  without  delay  to  neutral  powers,  and  shall  only  affect  them  after, 
the  receipt  of  a  notification,  which  may  be  sent  even  by  telegram. 
HoweATer,  neutral  powers  can  not  invoke  the  benefit  of  the  absence  of 
notification  if  it*  is  established  that  the  neutral  powers  know  that  war 
actually  exists.  Those  two  articles  mean  that  while  the  nations 
should  declare  war,  although  they  may  perhaps  rush  into  war  with¬ 
out  notification,  neutrals  are  not  to  be  subjected  to  the  burdens  of  war 
until  they  have  been  fully  notified  and  are,  therefore,  able  to  take  the 
proper  steps  and  measures  to  preserve  their  interests. 

FOURTH  CONVENTION. 

The  fourth  convention  concerns  the  laws  and  customs  of  land  war¬ 
fare.  This  has  been  previously  stated  to  be  a  revision  of  the  conven¬ 
tion  of  1899.  It  is  highly  technical  and  codifies  in  a  humanitarian 
spirit  the  warfare  of  the  present. 

FIFTH  CONVENTION. 

The  fifth  convention  attempts  to  regulate  the  rights  and  duties  of 
neutral  powers  and  of  neutral  persons  in  case  of  land  warfare.  Short, 
but  important,  its  guiding  spirit  is  expressed  in  the  opening  para¬ 
graph  of  the  preamble,  namely,  to  render  more  certain  the  rights  and 
duties  of  neutral  powers  in  case  of  warfare  upon  land  and  to  regulate 
the  situation  of  belligerent  refugees  in  neutral  territory.  The  framers 


26 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


of  the  convention  felt  that  although  a  fragment,  it  would  at  least  de¬ 
fine  neutrality  until  it  might  be  possible  to  regulate  as  a  whole  the 
situation  of  neutrals  in  their  relation  to  belligerents.  The  nature  of 
the  convention  is  thus  evident.  Its  further  definition  would  involve 
us  in  technical  details. 


SIXTH  CONVENTION. 

The  sixth  is  the  convention  concerning  enemy  merchant  ships  found 
in  enemy  ports  or  upon  the  high  seas  at  the  outbreak  of  hostilities. 
Custom  forbids  the  capture  of  enemy  vessels  within  the  port  of  the 
enemy  on  the  outbreak  of  hostilities  and  allows  them  a  limited  time 
to  discharge  or  load  their  cargo  and  depart  for  their  port  of  desti¬ 
nation.  The  attempt  was  made  to  establish  this  custom  or  privilege 
as  a  right.  The  proposition,  however,  met  with  serious  opposition 
and,  instead  of  the  right,  the  convention  states  that  it  is  desirable  that 
enemy  ships  be  permitted  freely  to  leave  the  port.  The  convention, 
therefore,  was  restrictive  rather  than  declaratory  of  existing  inter¬ 
national  practice.  The  same  might  be  said  of  another  provision  of 
the  convention  concerning  the  treatment  of  enemy  merchant  ships 
upon  the  high  seas.  It  may  be  said  that  the  expression  of  a  desire  is 
tantamount  to  a  positive  declaration,  but,  strictly  construed,  the  con¬ 
vention  is  not  progressive.  It  lessens  rights  acquired  by  custom  and 
usage,  although  it  does,  indeed, -render  the  privilege  granted  uni¬ 
versal.  The  American  delegation,  therefore,  refrained  from  signing 
the  convention. 


SEVENTH  CONVENTION. 


The  seventh  convention  deals  with  the  transformation  of  merchant 
ships  into  ships  of  war,  and  it  must  be  said  that  the  positive  results 
of  this  convention  are  of  little  or  no  practical  value.  The  burning 
question  was  whether  merchant  ships  might  be  transformed  into  men- 
of-war  upon  the  high  seas.  As  the  transformation  of  merchant  ves¬ 
sels  into  war  vessels  upon  the  high  seas  caused  an  international  com¬ 
motion  during  the  recent  Russo-Japanese  war,  Great  Britain  and  the 
United  States  insisted  that  the  transfer  should  only  be  allowed  within 
the  territorial  jurisdiction  of  the  transforming  power.  Some  of  the 
continental  states,  on  the  contrary,  refused  to  renounce  the  exercise 
of  the  alleged  right.  The  great  maritime  states  were  thus  divided, 
and  as  the  question  was  too  simple  and  too  plain  to  admit  of  com¬ 
promise,  it  was  agreed  to  drop  it  entirely  for  the  present.  In  order, 
however,  that  something  might  remain  of  the  careful  and  elaborate 
discussions  of  the  subject,  a  series  of  regulations  was  drawn  up  regard¬ 
ing  the  transformation  of  merchant  ships  into  vessels  of  Avar,  declara¬ 
tory  of  international  custom.  For  example:  The  vessel  transformed 
should  be  placed  under  the  direct  and  immediate  control  and  respon¬ 
sibility  of  the  power  whose  flag  it  bears;  that  the  vessel  must  bear 
the  outward  signs  of  a  man  of  war;  that  the  commander  should  be  in 
the  service  of  the  state  and  duly  commissioned ;  that  his  name  should 
appear  upon  the  list  of  officers  of  the  navy;  that  the  crew  should  be 
submitted  to  military  discipline;  that  the  vessel  in  its  operations 
should  conform  itself  to  the  customs  of  war,  and  that  the  transform¬ 
ing  nation  should  notify,  as  soon  as  possible,  the  transformation  of 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


27 


the  merchant  vessel.  It  will  be  seen  that  all  reference  to  the  place  of 
transformation  was  thus  carefully  eliminated  and  a  series  of  unob¬ 
jectionable  and  unquestionable  resolutions  declaratory  of  the  inter¬ 
national  custom  and  practice  was  adopted.  Indirectly,  the  rightful¬ 
ness  or  wrongfulness  of  privateering  was  concerned,  and  inasmuch 
as  the  United  States  would  not  consent  to  abolish  privateering  unless 
the  immunity  of  private  property  be  safeguarded,  the  American 
delegation  abstained  from  signing  the  convention. 

EIGHTH  CONVENTION. 

The  eighth  convention  relates  to  the  placing  of  submarine  auto¬ 
matic  mines  of  contact,  a  subject  of  present  and  special  interest  to 
belligerents;  while  the  interest  of  the  neutral  is  very  general.  War¬ 
fare  permits  belligerents  to  attack  and  to  destroy  each  other  in  order 
to  bring  about  a  state  of  calm  and  repose  which  we  call  peace,  but  the 
action  of  the  belligerent  should  be  confined  to  the  belligerents  them¬ 
selves.  Neutrals  should  be,  as  far  as  possible,  unaffected.  Mines 
break  from  their  moorings  and  endanger  neutral  life  and  property. 
The  conference,  therefore,  desires  to  regulate  the  use  of  mines  in  such 
a  way  as  not  to  deprive  the  belligerents  of  a  recognized  and  legitimate 
means  of  warfare,  but  to  restrict,  as  far  as  possible,  the  damage  to  the 
immediate  belligerents.  The  following  articles  were  therefore  agreed 
to : 

Article  1.  It  is  forbidden:  (1)  To  use  unanchored  automatic  contact  mines, 
unless  they  are  so  constructed  as  to  become  innocuous  at  the  latest  one  hour 
after  control  over  them  has  been  lost;  (2)  to  place  anchored  automatic  contact 
mines  which  do  not  become  innocuous  on  carrying  away  their  moorings;  (3) 
to  use  torpedoes  which  do  not  become  innocuous  when  they  have  missed  their 
target. 

Art.  2.  It  is  forbidden  to  place  automatic  contact  mines  in  front  of  the  coasts 
and  ports  of  the  adversary  with  the  sole  object  of  intercepting  commercial  navi¬ 
gation. 

Art.  3.  When  anchored  automatic  contact  mines  are  used,  all  possible  precau¬ 
tions  should  be  taken  for  the  safety  of  public  navigation. 

The  belligerents  engage,  as  far  as  possible,  to  provide  that  these  mines  shall 
become  innocuous  after  a  limited  period  of  time,  and  in  case  they  cease  to  be 
guarded,  to  give  notice  of  the  dangerous  localities,  as  soon  as  military  exigen¬ 
cies  permit,  by  a  notice  to  shipping  which  will  also  be  communicated  to  the 
governments  through  diplomatic  channels. 

Art.  4.  Any  neutral  power  which  places  automatic  contact  mines  in  front  of 
its  coasts  must  observe  the  same  rules  and  take  the  same  precautions  as  those 
which  are  imposed  upon  belligerents. 

The  neutral  powers  must  make  known  to  shipping  by  previous  notice,  the 
regions  where  automatic  contact  mines  are  to  be  moored.  This  notice  must  be 
communicated  speedily,  as  urgent,  to  the  governments  through  diplomatic 
channels. 

Art.  5.  At  the  close  of  the  war,  the  contracting  parties  engage  to  do  every¬ 
thing  in  their  power  to  remove,  each  for  himself,  the  mines  which  it  has  placed. 

As  to  anchored  automatic  contact  mines  which  one  of  the  belligerents  has 
placed  along  the  coast  of  the  other,  their  situation  shall  be  indicated  by  the 
power  that  has  placed  them  to  the  other  party  and  each  power  shall  proceed  in 
the  shortest  possible  time  to  remove  the  mines  which  are  found  in  its  waters. 

Art.  The  signatory  states  which  are  not  yet  provided  with  improved  mines, 
.such  as  are  required  by  this  regulation,  and  which  consequently  can  not  actually 
conform  to  the  rules  established  by  articles  1  and  3,  agree  to  transform,  as  soon 
as  possible,  their  mines,  so  as  to  comply  with  the  prescriptions  mentioned  above. 

Art.  7.  The  stipulations  of  the  present  regulation  are  concluded  for  the 
duration  of  seven  years  or  until  the  end  of  the  Third  Peace  Conference,  if  this 
date  is  prior. 


28 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


The  contracting  powers  engage  to  consider  again  the  question  of  the  use  of 
submarine  automatic  contact  mines  six  months  before  the  expiration  of  the 
period  of  the  seven  years,  in  case  it  has  not  been  again  taken  up  and  decided 
by  the  Third  Conference  of  Peace  at  a  previous  date. 

In  the  absence  of  the  stipulations  of  a  new  convention,  the  present  regulation 
shall  continue  in  force,  unless  this  convention  is  denounced.  The  denunciation 
shall  not  take  effect  (with  regard  to  the  notifying  power)  until  six  months 
after  the  notification. 

It  was  sought,  notably  by  Great  Britain,  to  prevent  any  nation 
from  placing  submarine  mines  beyond  its  territorial  waters,  namely, 
the  3-mile  limit.  It  was  objected  to  this  that  while  the  offensive 
use  of  mines  .might  be  limited,  it  was  inadvisable,  perhaps  unreason¬ 
able,  at  the  present  time  to  limit  the  defensive  use  of  mines.  In  one 
case  the  mines  would  be  used  as  a  means  of  attack;  in  the  second 
place  as  a  defense  against  aggression.  The  latter  view  commended 
itself  to  the  conference,  and,  after  much  discussion,  it  was  agreed 
not  to  introduce  into  the  convention  any  provision  upon  the  subject. 

NINTH  CONVENTION. 

The  ninth  convention  forbade  the  bombardment  by  naval  forces 
of  undefended  harbors,  villages,  towns,  or  buildings.  The  presence, 
however,  of  military  stores  would  permit  bombardment  of  such 
ports  for  the  sole  purpose  of  destroying  the  stores,  provided  they 
were  not  destroyed  or  delivered  up  upon  request.  Notice,  however, 
should  be  given  of  the  intention  to  bombard.  In  like  manner,  the 
convention  permitted  the  bombardment  of  such  undefended  places 
if  provisions  were  not  supplied  upon  requisition  to  the  naval  force. 
Bombardment,  however,  was  not  allowed  for  the  collection  of  mere 
money  contributions.  It  should  be  said  that  unoffending  property 
was  not  to  be  bombarded  or  destroyed,  and  buildings  and  institutions 
devoted  to  a  religious,  scientific,  or  charitable  purpose  were  expressly 
excluded  from  attack. 

This  convention  will  undoubtedly  subserve  a  useful  purpose  and 
clear  up  a  doubt  which  seems  to  have  existed.  The  weight  of  opinion 
forbade  the  bombardment  of  undefended  ports.  The  fear,  however, 
that  such  ports  might  be  attacked  and  held  in  order  to  enforce  sub¬ 
mission,  rendered  a  convention  on  this  subject,  even  although  declar¬ 
atory  of  international  usage  and  custom,  of  no  little  moment.  We 
all  remember  the  Spanish-American  war  and  the  constant  fear,  how¬ 
ever  unfounded,  that  the  Atlantic  coast  might  be  bombarded  by  the 
Spanish  fleet. 

TENTH  CONVENTION. 

The  tenth  convention  adapted  to  maritime  warfare  the  principles 
of  the  Geneva  Convention  of  1906.  It  is  not  necessary  to  describe 
this  admirable  document  in  detail.  We  are  familiar  with  the  Red 
Cross  and  its  work,  and  there  exists  absolute  unanimity  of  opinion 
that  the  sick  and  wounded  upon  the  battlefield  or  upon  the  high  seas 
should  be  cared  for,  irrespective  of  nationality.  Humanity  demands 
it  and  this  demand  has  been  carefully  complied  with.  A  word  of* 
history  may,  however,  be  permitted.  The  first  Geneva  Convention, 
dealing  with  land  warfare,  was  drawn  up  in  1864.  The  additional 
articles  of  1868,  extending  the  principles  of  land  warfare  to  naval 
warfare,  failed  of  adoption.  In  1899  the  additional  articles  were 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


29 


made  the  basis  of  a  convention  dealing  with  this  question  adopted  at 
the  First  Hague  Convention.  Warfare,  however,  had  changed  since 
1864  and  it  was  felt  that  the  provisions  of  the  Geneva  Convention  of 
1864  should  keep  pace  with  the  changed  conditions,  so  in  1906  the 
Geneva  Convention  of  1864  was  revised  and  the  present  conference 
adapted  the  provisions  of  this  revised  convention  of  1906  to  naval 
warfare.  It  is  not  necessary  to  enlarge  upon  the  importance  of  this 
convention.  We  understand  it  and  are  proud  of  the  progress  it 
marks,  in  succoring  the  sick  and  the  Avounded  and  mitigating  in 
their  extreme  rigor  the  evils  necessarily  incident  to  war. 

ELEVENTH  CONVENTION. 

The  eleventh  convention  relates  to  certain  restrictions  in  the  exer¬ 
cise  of  the  right  of  capture  in  maritime  war.  It  is  a  modest  docu¬ 
ment,  but  is  all  that  was  saved  from  the  wreck  of  the  immunity  of 
private  property.  The  American  delegation  urged  the  abolition  of 
the  right  of  capture  of  unoffending  enemy  private  property  upon  the 
high  seas,  but  great  maritime  powers  such  as  Great  Britain,  France, 
Russia,  and  Japan  were  unwilling  to  relinquish  this  means  of  bring¬ 
ing  the  enemy  to  terms.  A  convention  negotiated  by  powers  having 
no  great  maritime  interest  might  be  a  moral  victory ;  it  would  not  be 
of  practical  importance  except  as  embodying  in  conventional  form  the 
advanced  and  radical  views  of  this  subject.  But  to  return  to  the 
present  convention.  Chapter  1  frees  from  capture  mail  upon  a  vessel 
if  not  directed  to  or  coming  from  a  blockaded  port.  Chapter  2  frees 
from  capture  fishing  smacks  devoted  solely  to  coastal  fishing  and 
small  vessels  engaged  in  local  navigation.  It  is  pleasing  to  note  that 
the  conference  made  the  basis  of  its  action  the  decision  of  the  Su¬ 
preme  Court  of  the  United  States  in  the  well-known  case  of  The  Pa¬ 
quette  Habana ,  1899  (175  IT.  S.,  677).  Chapter  3  regulated  the  legal 
condition  of  the  crew  of  an  enemy  merchant  vessel  by  providing  that 
subjects  of  neutral  states  were  exempt  from  capture  and  that  subjects 
of  the  enemy  state  were  likewise  exempt  from  capture,  provided  they 
gave  an  oath  not  to  serve  during  the  continuance  of  the  war.  These 
provisions  are  indeed  modest  when  we  consider  the  vast  subject  in¬ 
volved.  They  are,  however,  humanitarian,  and  therefore  to  be  com¬ 
mended. 

TWELFTH  CONVENTION. 

The  twelfth  convention  sought  to  establish  an  international  court 
of  prize,  and  there  only  remains  the  ratification  of  this  convention  by 
the  contracting  powers  in  order  to  call  into  being  this  great  and 
beneficent  institution.  For  years  enlightened  opinion  has  protested 
against  the  right  of  belligerents  to  pass  final  judgment  upon  the  law¬ 
fulness  of  the  capture  of  neutral  property,  and  it  is  a  pleasure  to  be 
able  to  state  that  the  interests  of  the  neutrals  in  the  neutral  prize 
are  henceforward  to  be  placed  in  the  hands  of  neutral  judges  with  a 
representation  of  the  belligerents,  in  order  that  the  rights  of  all  con¬ 
cerned  may  be  carefully  weighed  and  considered. 

It  is  understood  that  Norway  intended  to  present  a  project  for  the 
establishment  of  a  court  of  prize.  It  is  a  fact  that  both  Germany 
and  Great  Britain  presented  a  project  for  the  establishment  of  a 
prize  court  at  the  first  business  session  of  the  conference.  #The  proj- 


30 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


ects,  however,  were  widely  divergent.  In  one,  the  continental  idea 
prevailed ;  in  the  other,  the  Anglo-Saxon  idea  dominated.  It  was  im¬ 
possible  to  convince  either  of  the  advantage  of  the  other  plan.  Mat¬ 
ters  were  at  a  standstill,  when  the  American  delegation,  through  Mr. 
Choate,  proposed  a  basis  of  compromise  which,  accepted  by  both, 
resulted  in  the  establishment  of  the  court. 

The  provisions  of  this  convention  are  technical  and  detailed  as 
must  be  the  case  in  which  an  institution  is  to  be  created  and  its  juris¬ 
diction  and  procedure  defined  within  the  compass  of  a  single  docu¬ 
ment.  It  is  impossible,  therefore,  to  discuss  it  at  any  length,  but  it 
would  be  an  unpardonable  omission  if  mention  were  not  made  of  its 
salient  features.  In  the  first  place,  national  prize  courts  are  to  offi¬ 
ciate  as  in  times  past.  One  appeal  is  allowed  from  a  national  court 
to  a  higher  court  of  the  captor’s  country.  Thereupon,  at  the  expira¬ 
tion  of  two  years  an  appeal  may  be  taken  directly  from  the  national 
court  and  the  case  transferred  from  the  national  court  to  the  interna¬ 
tional  prize  court  at  The  Hague.  This  court  thereupon  becomes 
seized  of  the  law  and  the  facts  involved  in  the  case  and  the  decision 
pronounced  becomes  final  and  binding  upon  the  litigant  parties. 

It  should  be  stated  that  while  the  prize  court  is  chiefly  a  court  for 
nations  instead  of  for  individuals,  still  the  individual  suitor,  unless 
expressly  prohibited  by  his  country,  may  himself  appeal  and  transfer 
the  case,  should  his  country  be  indisposed  to  appear  before  the  bar  as 
his  representative.  It  may  not  be  inappropriate  to  state  that  the 
institution  of  the  court  is  in  itself  a  recognition  of  the  fact  that  the 
individual  is  not  wdthout  standing  in  modern  international  law. 

In  discussing  the  matter  of  the  prize  court,  President  Roosevelt 
aptly  said,  in  his  recent  message: 

Anyone  who  recalls  the  injustices  under  which  this  country  suffered  as  a 
neutral  power  during  the  early  part  of  the  last  century  can  not  fail  to  see  in 
this  provision  for  an  international  prize  court  the  great  advance  which  the 
world  is  making  toward  the  substitution  of  the  rule  of  reason  and  justice  in 
place  of  simple  force.  Not  only  will  the  international  prize  court  be  the  means 
of  protecting  the  interests  of  neutrals,  but  it  is  in  itself  a  step  toward  the  crea¬ 
tion  of  the  more  general  court  for  the  hearing  of  international  controversies  of 
which  reference  has  just  been  made.  The  organization  and  action  of  such  a 
prize  court  can  not  fail  to  accustom  the  different  countries  to  the  submission  of 
international  questions  to  the  decision  of  an  international  tribunal,  and  we  may 
confidently  expect  the  results  of  such  submission  to  bring  about  a  general  agree¬ 
ment  upon  the  enlargement  of  the  practice. 

THIRTEENTH  CONVENTION. 

The  thirteenth  convention  concerns  and  seeks  to  regulate  the  rights 
and  duties  of  neutral  powers  in  case  of  maritime  war.  This  is  an 
elaborate  codification  of  the  rights  and  duties  of  neutrals  in  which  the 
conference  essayed  to  generalize  and  define  on  the  one  hand  the  rights 
of  neutrals  and  the  correlative  duties  of  the  belligerents,  and  in  the 
second  place  to  set  forth  in  detail  the  duties  of  neutrals,  thus  safe¬ 
guarding  the  rights  of  belligerents  in  certain  phases  of  maritime 
warfare.  The  belligerents  are  forbidden  to  commit  hostilities  within 
the  territory  or  the  territorial  waters  of  neutrals  and  are  forbidden  to 
make  a  neutral  port  or  neutral  territory  the  basis  of  naval  operations. 
The  neutral  is  likewise  forbidden  to  permit  such  conduct ;  the  belliger¬ 
ent  is  forbidden  to  equip,  provision,  or  to  procure  ammunition  for  a 
warlike  jmrpose  within  neutral  ports,  and  the  neutral  is  required  to 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


31 


prevent  such  use  of  its  territory.  The  enemy  men-of-war  are  forbid¬ 
den  to  remain  beyond  a  certain  period  in  neutral  harbors.  If  vessels 
of  the  other  enemy  be  present,  the  order  in  which  the  vessels  shall 
leave  is  prescribed,  so  that  hostilities  may  not  begin  within  neutral 
jurisdiction.  There  are  other  and  important  provisions  in  the  con¬ 
vention  which  aim  to  codify  existing  custom,  with  the  addition  of 
provisions  thought  to  be  necessary  or  highly  desirable.  The  result, 
however,  was  unsatisfactory  to  some  of  the  larger  maritime  powers, 
which  prefer  their  present  regulations  on  the  subject  of  neutrality  or 
which  were  unwilling  to  accept  the  modifications  proposed.  The 
United  States  was  not  satisfied  with  certain  provisions  of  the  conven¬ 
tion  and  reserved  the  right  to  study  the  project  in  detail  before  ex¬ 
pressing  a  final  opinion.  It  therefore  abstained  from  voting  and 
signing. 


FOURTEENTH  CONVENTION. 


The  fourteenth  convention  is  a  reenactment  of  the  declaration  of 
1899  forbidding  the  launching  of  projectiles  and  explosives  from  bal¬ 
loons.  The  original  declaration  was  agreed  to  for  a  period  of  five 
years,  and  as  this  period  had  expired  the  powers  were  without  a  regu¬ 
lation  on  the  subject.  The  reenactment  provided  that  the  present 
declaration  shall  extend,  not  merely  for  a  period  of  five  years,  but  to 
the  end  of  the  Third  Conference  of  Peace.  It  is  difficult  to  say 
whether  the  declaration  is  important  or  not.  It  is,  however,  evidence 
of  the  fact  that  the  conference  believed  that  land  and  water  offer  a 
sufficient  field  for  warfare  without  extending  it  to  a  newer  element, 
the  air. 

SUMMARY  OF  THE  CONVENTIONS. 

Such  is,  in  brief,  the  content  of  the  fourteenth  convention,  includ¬ 
ing  a  declaration  previously  enumerated.  The  Final  Act  then  passes 
to  the  less  formal  results :  “  The  conference,  inspired  by  the  spirit  of 
compromise  and  reciprocal  concession  which  pervades  its  delibera¬ 
tions,  adopted  the  following  declarations  which,  reserving  to  each  of 
the  represented  powers  the  benefit  of  its  votes,  allows  them  to  affirm 
the  principles  which  they  consider  as  unanimously  recognized. 

It  is  unanimous:  (1)  In  accepting  the  principle  for  obligatory  arbitration; 
(2)  in  declaring  that  certain  differences,  and  notably  those  relating  to  the  inter¬ 
pretation  and  application  of  international  conventional  stipulations,  are  suscep¬ 
tible  of  being  submitted  to  obligatory  arbitration  without  any  restriction. 

It  was  a  matter  of  great  regret  to  the  82  powers  voting  in  behalf 
of  a  general  treaty  of  obligatory  arbitration,  against  which  there  were 
only  9  votes  recorded,  that  the  opponents  of  this  great  and  beneficient 
measure  stood  upon  the  rights  of  the  minority  to  block  the  will  of  the 
majority;  but  as  Germany  and  Austria  refused  to  yield  to  the  ma¬ 
jority,  and  as  an  attempt  to  sign  a  special  convention  dealing  with 
the  subject,  to  be  binding  only  on  those  who  voted  for  it,  would  have 
created  bitterness  of  feeling  within  and  without  the  conference,  it  was 
deemed  in  the  interest  of  international  peace  and  good  understanding 
to  adopt  the  principle  in  the  abstract  without  seeking  to  incorporate 
it  in  the  concrete  form  of  a  convention.  The  future,  however,  is  very 
bright.  There  is  no  reason  to  prevent  the  82  powers  from  negotiating 
individual  and  separate  treaties  and  thus  accomplish  indirectly  and 


32 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


beyond  the  confines  of  The  Hague  what  might  and  would  have  been 
accomplished  but  for  the  determined  opposition  of  two  great  but  un¬ 
converted  powers. 

RESOLUTION  REGARDING  MILITARY  BURDENS. 

In  the  next  place,  to  continue  the  reading  of  the  Final  Act,  the  con¬ 
ference  adopted  unanimously  the  following  resolution : 

Tlie  Second  Conference  of  Peace  reaffirms  the  resolution  adopted  by  the  con¬ 
ference  of  1899  regarding  the  limitation  of  military  charges,  and  considers  that 
these  military  burdens  have  considerably  increased  in  almost  all  the  countries 
since  the  last  date.  The  conference  declares  that  it  is  especially  to  be  desired 
that  the  governments  should  undertake  again  the  serious  study  of  this  question. 

The  friends  of  peace  regarded  the  failure  to  limit  the  burden  of 
armaments  as  a  misfortune.  There  is  much,  however,  to  be  said  for 
the  haste  that  makes  slowly.  The  problem  of  disarmament  or  limi¬ 
tation  of  armaments  is  a  very  serious  one.  It  is  much  more  serious 
than  the  pacifists  would  have  us  believe.  Shall  all  disarm  at  one  and 
the  same  time?  If  that  were  possible  we  could  solve  the  question  at 
once ;  but  the  fear  that  some  may  not  disarm  while  others  do,  and  the 
further  fear  that  the  large  powers  have  not  really  lost  the  appetite 
for  the  weaker,  must  make  one  pause.  Germany  consented  to  the 
passage  of  the  resolution,  Great  Britain  supported  it,  and,  in  accord¬ 
ance  with  direct  instructions  from  the  Secretary  of  State,  the  Ameri¬ 
can  delegation  voted  for  the  measure. 

RECOMMENDATION  OF  ESTABLISHMENT  OF  COURT  OF  ARBITRATION. 

The  Final  Act  then  proceeds  to  enumerate  five  recommendations, 
the  first  and  last  of  which  should  be  discussed. 

The  conference  recommends  to  the  signatory  powers  the  adoption  of  the 
project  hereunto  annexed  of  a  convention  for  the  establishment  of  a  court  of 
arbitral  justice  and  its  putting  into  effect  as  soon  as  an  agreement  shall  have 
been  reached  as  to  the  choice  of  the  judges  and  the  constitution  of  the  court. 

The  project  referred  to  as  annexed  and  made  a  part  of  the  recom¬ 
mendation  is  a  careful  convention  consisting  of  thirty-five  articles, 
providing  for  the  organization,  jurisdiction,  and  procedure  of  a  per¬ 
manent  court  of  arbitration,  composed  of  permanent  judges,  versed 
in  the  existing  systems  of  law  of  the  modern  civilized  world.  The 
conference  was  unable  to  agree  upon  the  precise  method  of  appoint¬ 
ing  the  judges  for  the  court,  but  recommended  that  this  court  be 
established  upon  the  basis  of  the  project  approved  by  it  and  annexed 
to  the  recommendation  as  soon  as  the  signatory  powers  should  agree 
upon  the  method  of  appointing  judges.  The  number  of  powers 
necessary  is  not  specified,  nor  is  the  number  of  judges  determined, 
as  in  the  court  of  prize.  It  therefore  follows  that  any  number  of 
powers  may  agree  to  make  the  project  the  basis  of  the  court  and  the 
court  is  established.  It  would  thus  seem  that  we  are  in  the  presence 
of  the  realization  of  centuries  of  hope. 

The  fate  of  the  court  was  long  in  suspense.  The  opposition  to  it 
was  bitter  at  times.  It  was  more  difficult  to  carry  than  the  prize 
court,  because  there  was  no  international  court  of  prize  whereas  there 
is  a  permanent  court  of  arbitration — -The  Hague  Court — although 
permanent  in  name  only  and  constituted  from  a  list  of  judges  for 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


33 


each  case  submitted  to  it.  The  existence,  however,  of  the  permanent 
court  made  it  more  difficult  to  establish  the  new  one,  and  it  was  not 
until  the  last  day  but  one  of  the  Conference  that  the  project  was 
adopted  and  referred  to  the  powers  by  the  unanimous  vote  of  the 
nations  present  and  voting.  Perhaps  it  would  be  advisable  to  quote 
the  first  paragraph  of  the  project  in  order  that  the  exact  nature  of  the 
court  may  be  evident.  It  is  as  follows : 

In  order  to  further  the  cause  of  arbitration,  the  contracting  powers  agree  to 
organize,  without  injury  to  the  permanent  court  of  arbitration,  a  court  of  ar¬ 
bitral  justice,  free  and  easy  of  access,  composed  of  judges  representing  the 
juridical  systems  of  the  world  and  capable  o  fassuring  the  continuity  of  arbitral 
jurisprudence. 

It  is  proper  to  state  that  the  project  was  essentially  an  American 
project,  although  presented  conjointly  by  Germany  and  Great  Britain, 
and  the  establishment  of  the  court  in  the  near  future  will  be  an  Ameri¬ 
can  triumph.  President  Roosevelt,  in  his  recent  message  to  Congress, 
commented  as  follows  upon  this  recommendation : 

Substantial  progress  was  also  made  toward  the  creation  of  a  permanent  judi¬ 
cial  tribunal  for  the  determination  of  international  causes.  There  was  very  full 
discussion  of  the  proposal  for  such  a  court  and  a  general  agreement  was  finally 
reached  in  favor  of  its  creation.  The  conference  recommended  to  the  signatory 
powers  the  adoption  of  a  draft  upon  which  it  agreed  for  the  organization  of  the 
court,  leaving  to  be  determined  only  the  method  by  which  the  judges  should  be 
selected.  This  remaining  unsettled  question  is  plainly  one  which  time  and  good 
temper  will  solve. 

I  believe  you  will  search  in  vain  for  any  work  of  a  more  far-reach¬ 
ing  nature  accomplished  within  the  past  centuries.  The  dream  of 
Henry  IY,  the  hope  of  William  Penn,  both  of  whom  prepared  projects 
for  a  court  of  nations,  seem,  if  not  wholly  to  have  been  realized,  within 
the  very  grasp  of  our  generation. 

THIRD  PEACE  CONFERENCE. 

The  friends  of  peace  and  arbitration  had  wished  to  make  the  con¬ 
ference  at  The  Hague  a  permanent  institution,  meeting  at  regular  and 
stated  intervals  known  in  advance.  The  American  delegation  had  the 
honor  to  urge  the  adoption  of  such  a  resolution  or  recommendation 
and  succeeded  in  substance,  although  the  language  is  not  so  clear  and 
crisp  as  one  would  like  to  see  it.  The  exact  wording  of  the  recom¬ 
mendation  follows: 

Finally,  the  conference  recommends  to  the  powers  the  reunion  of  a  third  peace 
conference  to  take  place  within  a  period  analogous  to  that  which  has  elapsed 
since  the  preceding  conference  (eight  years)  at  a  date  to  be  fixed  by  common 
agreement  among  the  powers,  and  the  conference  call  their  attention  to  the 
necessity  of  preparing  the  programme  of  the  Third  Conference  far  enough  in 
advance  in  order  that  its  deliberations  may  take  place  with  indispensable  author¬ 
ity  and  rapidity. 

In  order  to  reach  this  end,  the  conference  considers  it  very  desirable  that  two 
years  before  the  probable  reunion  of  the  conference  a  preparatory  committee  be 
charged  by  the  governments  with  the  duty  of  collecting  the  different  propositions 
to  be  submitted  to  the  conference,  of  discovering  matters  susceptible  of  future 
international  regulation,  and  of  preparing  a  programme  which  the  governments 
shall  determine  so  that  it  may  be  attentively  studied  in  each  country.  This  com 
mittee  shall  propose  a  mode  of  organization  and  procedure  for  the  conference. 

The  meaning  of  this  recommendation  is  obvious.  Whatever  power 
may  call  the  conference,  the  interested  governments  are  to  prepare  the 

S.  Doc.  433,  60-1 - 3 


34 


THE  SECOND  HAGUE  PEACE  CONFERENCE. 


programme  and  devise  rules  for  the  organization  and  procedure  of  the 
conference.  In  other  words,  the  conference  ceases  to  be  Russian  in 
becoming  international. 

A  LANDMARK  IN  INTERNATIONAL  DEVELOPMENT. 

Enough  has  been  said  to  show  that  this  conference,  which  lasted 
four  months,  and  which  was  subjected  to  criticism  in  all  parts  of  the 
world  and  to  misrepresentations  in  the  journals,  has  not  only  justified 
its  calling,  but  that  it  is  a  landmark  in  international  development. 

Our  great  concern  must  be,  as  far  as  possibly,"  to  humanize  war  as 
long  as  war  exists.  The  greater  task  is  to  removed  the  causes  of  war  so 
that  nations  may  not  be  hurried  into  war,  or  that  friction,  developed 
by  the  failure  to  solve  or  adjust  conflicts,  may  not  permit  nations 
slowly  but  surely  to  drift  into  war. 

Leaving  out  minor  matters,  this  conference  did  four  things : 

1.  It  provided  for  a  meeting  of  a  third  conference  within  an 
analogous  period — namely,  eight  years,  to  be  under  the  control  of  the 
powers  generally,  instead  of  the  control  of  any  one  of  them. 

2.  It  adopted  a  convention  for  the  nonforcible  collection  of  contract 
debts,  substituting  arbitration  and  an  appeal  to  reason  for  force  and 
an  appeal  to  arms. 

3.  It  established  a  prize  court  to  safeguard  neutrals,  and 

4.  It  laid  the  foundations  of,  if  it  did  not  put  the  finishing  stone  to, 
a  great  court  of  arbitration. 


O 


